ORDER GRANTING MOTION TO DISMISS

(Dkt. No. 6)

WILLIAM ALSUP, District Judge.

INTRODUCTION

This is a habeas case brought pro se by a state prisoner under 28 U.S.C. 2254 challenging his conviction in Alameda County Superior Court in 2005. Respondent has filed a motion to dismiss the petition as a second or successive petition. Petitioner filed an opposition, and respondent filed a reply brief. The motion is granted and the case is dismissed.

STATEMENT

In 2005, petitioner pled no contest in Alameda County Superior Court to attempted murder with the use of a firearm. The trial court sentenced petitioner to a term of seventeen years in state prison. Petitioner did not pursue direct review of his judgment, but he filed habeas petitions in the California state courts. In 2008, petitioner filed a habeas petition under 28 U.S.C. 2254 in federal court, Stafford v. Disto, No. C 08-3549 WHA (PR), in which he claimed that the trial court violated his Sixth Amendment right to trial by jury under Cunningham v. California, 549 U.S. 270 (2007), by imposing the upper term of ten years on the enhancement for the personal use of a firearm. The petition was denied on its merits on February 1, 2010, and a certificate of appealability was denied in the district court. The United States Court of Appeals also denied a certificate of appealability because the notice of appeal was untimely. The instant petition followed, in which he challenges the 2005 state court judgment on the same grounds, and also claims that he received ineffective assistance of counsel.

ANALYSIS

Respondent argues that the instant petition is a second or successive federal habeas petition, insofar as it challenges the same 2005 state court judgment that petitioner challenged in his prior federal petition. A second or successive petition challenging the same state court judgment under Section 2254 may not be filed in federal district court unless the petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not sought or obtained such an order from the Court of Appeals.

Petitioner's current petition challenging the same state court judgment is the very type of practice — successive challenges to the same state court judgment — to which the restrictions of Section 2244(b) apply. These restrictions apply, moreover, even where petitioner raises a new claim. As a result, the instant petition must be dismissed without prejudice. This dismissal does not foreclose petitioner from ever obtaining federal habeas relief on the claims in the instant petition. Rather, he is simply required to obtain permission from the United States Court of Appeals to file a second or successive petition in the district court. Once he obtains such permission, he may file his claims in a new habeas petition in federal district court and the claims will be considered, subject to time limits.

CONCLUSION

For the foregoing reasons, respondent's motion to dismiss (dkt. 6) is GRANTED and the petition is DISMISSED without prejudice.

Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to rule on whether a petitioner is entitled to a certificate of appealability in the same order in which the petition is denied. Petitioner has failed to make a substantial showing that a reasonable jurist would find the dismissal of his petition debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted in this case.

The clerk shall enter judgment and close the file.

IT IS SO ORDERED.