Jones v. Macomber

Northern District of California, cand-4:2015-cv-02610

ORDER OF DISMISSAL WITHOUT PREJUDICE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. No Certificate of Appealability is warranted in this case. Signed by Judge Jeffrey S. White, on 7/31/15. Modified on 8/3/2015

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 MARK ANTHONY JONES,) No. C 15-2610 JSW (PR)) 11 Petitioner,) ORDER OF DISMISSAL; GRANTING United States District Court) LEAVE TO PROCEED IN FORMA vs.) PAUPERIS For the Northern District of California 12) 13 JEFF MACUMBER, Warden,)) 14 Respondent.)) (Docket No. 3) 15) 16 Petitioner, a prisoner of the State of California proceeding pro se, has filed a 17 habeas corpus petition pursuant to 28 U.S.C. § 2254. He was convicted and sentenced in 18 Sonoma County Superior Court for possession of drugs. He previously filed a habeas 19 petition in this Court challenging the same judgment, which petition was denied on its 20 merits. See Jones v. Adams, No. C 06-4162 VRW (PR). 21 In the present petition, he contends that he is entitled to relief, i.e. a shorter 22 sentence or immediate release, under California law, specifically California Proposition 23 36. He also claims that the failure to re-sentence him under Proposition 36 violates his 24 federal constitutional rights. Petitioner has been informed on prior occasions that in he 25 must first obtain from the United States Court of Appeals for the Ninth Circuit an order 26 authorizing this Court to consider a second or successive petition from him. See 28 27 U.S.C. § 2244(b)(3)(A). That is still the case. He has not indicated that he has received 28 such authorization. 1 Accordingly, the petition is DISMISSED without prejudice to filing his claims in 2 a new petition after he has obtained the necessary authorization from the United States 3 Court of Appeals. 4 Petitioner's request to proceed in forma pauperis is GRANTED (dkt. 4). 5 Rule 11(a) of the Rules Governing Section 2254 Cases requires a district court to 6 rule on whether a Petitioner is entitled to a certificate of appealability in the same order 7 in which the petition is decided. No reasonable jurist would find this Court's denial of 8 his claim on procedural grounds debatable or wrong. See Slack v. McDaniel, 529 U.S. 9 473, 484 (2000). Consequently, no certificate of appealability is warranted in this case. 10 The Clerk shall enter judgment and close the file. 11 IT IS SO ORDERED. United States District Court DATED: July 31, 2015 For the Northern District of California 12 13 JEFFREY S. WHITE United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2