Free Order - District Court of California - California

Case 3:08-cv-03422-JSW

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Filed 07/24/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a petition for a writ of habeas corpus brought pro se by Petitioner pursuant to 28 U.S.C. § 2254 challenging the constitutional validity of her state conviction and sentence. Petitioner's earlier habeas petition was filed before this Court under Case No. C:05-cv-2574 JSW (PR). That petition was denied as untimely on March 23, 2007. That case is now pending on appeal in the United States Court of Appeals for the Ninth Circuit. Petitioner now files a separate habeas petition raising what appear to be different claims than those raised in her earlier petition directed at errors in her sentence. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law on April 24, 1996. Under AEDPA, a district court must dismiss claims presented in a second or successive habeas petition challenging the same conviction and sentence that were raised in a previous petition. 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. 28 vs. TINA HORNBECK, Warden, Respondent. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AYANNA Z. GREEN, Petitioner, ) ) ) ) ) ) ) ) ) ) No. C 08-3422 JSW (PR) ORDER OF DISMISSAL

Case 3:08-cv-03422-JSW

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Filed 07/24/2008

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U.S.C. § 2244(b)(3)(A). Here, the instant petition challenges the sentence on the same conviction as the earlier petition previously denied by this Court. Petitioner has not presented an order from the court of appeals authorizing the Court to consider these claims. Accordingly, the petition for writ of habeas corpus is DISMISSED as a second and successive petition. Petitioner is free to seek such an order from the United States Court of Appeals for the Ninth Circuit. See, 28 U.S.C. § 2244(b)(3)(A). The Clerk shall close the file and enter judgment in this matter. IT IS SO ORDERED. DATED: July 24, 2008

JEFFREY S. WHITE United States District Judge

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Case 3:08-cv-03422-JSW

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Filed 07/24/2008

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v. TINA HORNBECK et al, Defendant. AYANNA Z. GREEN, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-03422 JSW CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 24, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Ayanna Z. Green W75617 P.O. Box 96 Chowchilla, CA 93610-0096 Dated: July 24, 2008 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk