Free Order - District Court of California - California

Case 5:08-cv-02347-RMW

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Filed 07/11/2008

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*E-FILED - 7/11/08*

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA LADELL DICKERSON, ) ) ) ) ) ) ) ) ) ) No. C 08-2347 RMW (PR) ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; INSTRUCTIONS TO CLERK

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Petitioner,
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v.
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DARRAL ADAMS,
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Respondent.
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Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's application to proceed in forma pauperis is GRANTED.1 Petitioner filed a previous habeas action with this court, in case no. C 0021087 RMW (PR), challenging the same conviction and sentence raised in the instant petition. In this earlier habeas action, the court denied the petition on the merits on January 29, 2004. The court will DISMISS the instant petition without prejudice as a second or successive petition pursuant to 28 U.S.C. § 2244(b). DISCUSSION A district court must dismiss claims presented in a second or successive habeas petition challenging the same conviction and sentence unless the claims presented in the

The application to proceed in forma pauperis was inadvertently filed in a new case, No. C 08-2386 RMW (PR). The clerk has been instructed to close the new case and file the application in this case.
Order of Dismissal G:\PRO-SE\SJ.Rmw\HC.08\Dickerson347dis.wpd

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Case 5:08-cv-02347-RMW

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Filed 07/11/2008

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previous petition were denied for failure to exhaust. See 28 U.S.C. § 2244(b)(1); Babbitt v. Woodford, 177 F.3d 744, 745-46 (9th Cir. 1999). Additionally, a district court must dismiss any new claims raised in a successive petition unless the petitioner received an order from the court of appeals authorizing the district court to consider the petition. Here, the instant petition challenges the same conviction and sentence as petitioner's earlier habeas action, which was denied on the merits. Petitioner has not presented an order from the Ninth Circuit Court of Appeals authorizing this court to consider any new claims. Accordingly, this court must dismiss the instant petition in its entirety. See 28 U.S.C. § 2244(b)(3)(A). CONCLUSION The instant habeas petition is DISMISSED as a second and successive petition without prejudice to refiling after petitioner obtains the necessary certification from the Ninth Circuit. The court has received a notice of change of address from petitioner, which was filed in his other case, No. C 08-2386 RMW (PR). The clerk shall change the address on the docket in this matter as well to reflect petitioner's updated address as follows:
Ladell Dickerson P-48453 California Men's Colony State Prison Cell #3300 X P.O. Box 8101 San Luis Obispo, CA 93409-8101

The clerk shall terminate any pending motions and close the file.
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IT IS SO ORDERED.
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Order of Dismissal G:\PRO-SE\SJ.Rmw\HC.08\Dickerson347dis.wpd

DATED: 7/7/08 RONALD M. WHYTE United States District Judge

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