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Silas v. Ryan

United States District Court, Ninth Circuit

November 6, 2013

Kirkland Renard Silas, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

G. MURRAY SNOW, District Judge.

Petitioner Kirkland Renard Silas, who is confined in the Arizona State Prison Complex-Tucson, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), an Application to Proceed In Forma Pauperis (Doc. 2), and a Motion to Appoint Counsel (Doc. 6). The Court will dismiss the Petition without prejudice and deny as moot the Motion to Appoint Counsel.

I. Application to Proceed In Forma Pauperis

Petitioner's Application to Proceed In Forma Pauperis indicates that his inmate trust account balance is less than $25.00. Accordingly, the Application to Proceed In Forma Pauperis will be granted. See LRCiv 3.5(b).

II. Petition

This is Petitioner's second petition for a writ of habeas corpus challenging his conviction in Maricopa County Superior Court, case #CR 94-93693, for reckless manslaughter. On November 20, 2002, Petitioner filed his first petition for a writ of habeas corpus regarding that conviction, Silas v. Rollins, CV 02-2338-PHX-EHC. In a July 8, 2003 Order (Doc. 20 in CV 02-2338-PHX-EHC), the Court denied the petition, and the Clerk of Court entered Judgment accordingly (Doc. 21 in CV 02-2338-PHX-EHC).

Under 28 U.S.C. § 2244, a petitioner may not file a second or successive § 2254 petition in the district court unless the petitioner has obtained a certification from the Ninth Circuit Court of Appeals authorizing the district court to consider the second or subsequent § 2254 petition. A habeas petition is "second or successive' if it raises claims that were or could have been adjudicated on their merits in an earlier petition." Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) ( per curiam ). The current petition, therefore, is a second or successive petition.

Petitioner has not presented a certification from the Ninth Circuit authorizing the Court to consider a second or subsequent § 2254 petition. Accordingly, the current Petition and this action must be dismissed as a successive petition. The Court, however, will dismiss the case without prejudice so that Petitioner may seek certification from the Ninth Circuit to file a second or successive § 2254 petition.

IT IS ORDERED:

(1) Petitioner's Application to Proceed In Forma Pauperis (Doc. 2) is granted.

(2) Petitioner's Motion to Appoint Counsel (Doc. 6) is denied.

(3) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) and this action are dismissed without prejudice, and the Clerk of Court must enter judgment accordingly.

(4) The Clerk of Court must provide Petitioner with a copy of the form recommended by the Ninth Circuit Court of Appeals for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.

(5) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).


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