1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ANDRE SMITH, T16447, Case No. 20-cv-03235-CRB (PR) 7 Petitioner, ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS AS 8 Vv. SECOND OR SUCCESSIVE 9 RICK HILL, Warden, (ECF Nos. 2 & 3) 10 Respondent. 11 Petitioner, a state prisoner currently incarcerated at Folsom State Prison, has filed a second 12 || or successive petition for a writ of habeas corpus under 28 U.S.C.§ 2254 challenging a judgment 5 13 || of conviction and sentence from Alameda County Superior Court. His first petition was denied as S 14 untimely under

(d) on July 30, 2013. See Smith v. Lewis, No. 12-cv-04011-CRB 15 (PR) (N.D. Cal. July 30, 2013) (order granting motion to dismiss). z 16 A second or successive petition may not be filed in this court unless petitioner first obtains 5 17 || from the United States Court of Appeals for the Ninth Circuit an order authorizing this court to 18 consider the petition. See

(b)(3)(A); see also McNabb v. Yates,

, 19 1029 (9th Cir. 2009) (§ 2244(b) applies when prior petition was dismissed as untimely). Petitioner 20 || has not obtained such an order from the Ninth Circuit. The instant petition accordingly is 21 DISMISSED without prejudice to refiling if petitioner obtains the necessary order. 22 But based solely on petitioner’s affidavit of poverty, his application to proceed in forma 23 pauperis (ECF No. 2) under

is GRANTED. 24 The clerk shall close the file and terminate all pending motions (see ECF No. 3) as moot. 25 IT IS SO ORDERED. 26 || Dated: May 14, 2020 27 a io CHARLES R. BREYER 28 United States District Judge