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Adam Gray v. K. Harrington

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


May 3, 2011

ADAM GRAY, PETITIONER,
v.
K. HARRINGTON, RESPONDENT.

ORDER

Petitioner, a prisoner without counsel, has filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. 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.

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 v. Stewart, 549 U.S. 147, 153 (2007). 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. Id.; Slack v. McDaniel, 529 U.S. 473, 485-486 (2000).

In the present action, petitioner challenges his 2001 conviction for first-degree murder with special circumstances and consequent sentence of life in prison without the possibility of parole. The court has examined its records, and finds that petitioner challenged the same conviction in case number Civ. S-07-0126 MCE EFB P. That petition was denied on the merits as time-barred. See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) ("[D]ismissal of a section 2254 habeas petition for failure to comply with the statute of limitations renders subsequent petitions second or successive for purposes of the AEDPA, 28 U.S.C. § 2244(b).") Therefore, it appears that petitioner challenges the same judgment now that he previously challenged and which was adjudicated on the merits. Thus, it appears that the June 18, 2009 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 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.

20110503

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