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Dosty v. Krammer

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 27, 2009

FRANKIE DOSTY, PETITIONER,
v.
M.C. KRAMMER, RESPONDENT.

ORDER

Petitioner, a state prisoner without counsel, has filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a).

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.

The court has reviewed the petition as required by Rule 4 of the Rules Governing Section 2254 Proceedings, and finds that the petition appears to be second or successive. Thus, petitioner must show either that the petition is not second or successive or that he has obtained permission to proceed from the appellate court.

A petition is second or successive if it makes "claims contesting the same custody imposed by the same judgment of a state court" that the petitioner previously challenged, and on which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. 147.

In the present action, petitioner challenges a July 1, 1998 conviction in the Sacramento County Superior Court for robbery and assault with a firearm, for which he was sentenced to state prison for a term of 19 years and eight months. Pet. at 2, 7; Brief in Supp. of Pet. at 1. The court has examined its records, and finds that petitioner challenged the same conviction in case number Civ. S-07-1361 FCD CMK. That petition was denied on the ground that it was untimely. Dosty v. Krammer, No. Civ. S-07-1361 FCD CMK, Docket No. 27. Therefore, it appears that petitioner challenges the same judgment now that he previously challenged and which was adjudicated on the merits. See Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of habeas petition as time barred "constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction 'second or successive' petitions under § 2244(b)."). Thus, it appears that the October 28, 2008, petition is second or successive. Petitioner offers no evidence that the appellate court has authorized this court to consider a second or successive petition.

Accordingly, it hereby is ORDERED that:

1. Petitioner's request for leave to proceed in forma pauperis is granted; and

2. Petitioner shall, within 30 days of the date this order is served, demonstrate either that this petition is not second or successive or submit evidence that the appellate court has authorized this court to consider the petition. Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed upon the ground that petitioner has without authorization filed a second or successive petition.

20090527

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