Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a).
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 1998 conviction in the Sacramento County Superior Court for seven counts of burglary, one count of possession of a controlled substance, one count of possession of stolen property and one count of driving a vehicle without the owner's consent, for which he was sentenced to 175 years to life imprisonment. Pet. at 1. The court has examined its records, and finds that petitioner challenged the same conviction in this court in case number 2:02-cv-0794-JAM-JFM. That petition was denied on the merits on April 2, 2008. Simmons v. Lamarque et al., Case No. 2:02-cv-0794, Doc. Nos. 56-57. 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 October 6, 2011 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 IS HEREBY ORDERED that:
1. Petitioner's request to proceed in forma pauperis is granted; and
2. Petitioner shall, within 30 days of the date of this order, 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.
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