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Joseph v. Knipp

United States District Court, Ninth Circuit

May 29, 2013

ALONZO JOSEPH, Petitioner,
v.
WILLIAM KNIPP, Respondent.

ORDER

GREGORY G. HOLLOWS, Magistrate Judge.

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Petitioner has consented to a Magistrate Judge in this action pursuant to 28 U.S.C. § 636(c).

The court's records reveal that petitioner has previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in this case. (Joseph v. Pliler, CIV-00-0004 (EJG GGH P). The previous application was filed on January 3, 2000, and was denied on the merits on August 5, 2003. The court's records reflect that since Joseph v. Pliler was decided, petitioner has filed other petitions in this court challenging the same 1997 conviction. See Joseph v. Knowles, case no. 04-cv-1780 MCE GGH P (filed August 26, 2004 and transferred to the Ninth Circuit Court of Appeals as successive on November 29, 2004); Joseph v. Knipp, case no. 12-cv-1061 GGH P (filed April 23, 2012 and transferred to the Ninth Circuit Court of Appeals as successive on May 1, 2012); Joseph v. Knipp, case no. 12-cv-2507 DAD P (filed October 5, 2012 and dismissed as successive on October 26, 2012).

The current petition represents a successive challenge to the same 1997 conviction at issue in each of petitioner's prior petitions. Accordingly, before petitioner can proceed with the instant application he must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner's application must be dismissed without prejudice to its refiling upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit.

In accordance with the above, IT IS HEREBY ORDERED that: this action is dismissed without prejudice.


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