1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 FELIPE POLANCO DIAZ, Case No. 23-cv-01449-WHO (PR)

Petitioner, 5 ORDER OF DISMISSAL v. 6

7 CHRISTIAN PFEIFFER, Dkt. No. 10 Respondent. 8

9 10 INTRODUCTION 11 Petitioner Felipe Polanco Diaz has filed a habeas petition under

in 12 which he challenges the same state court judgment he challenged in a prior habeas action 13 that he filed in this district, Diaz v. Martel, No. 10-cv-05298-PJH. The pending petition 14 will be dismissed as second or successive to the prior petition. 15 The Clerk shall enter Christian Pfeiffer, the warden of the prison in which Diaz is 16 housed, as the respondent in this action. Pfeiffer is the sole proper respondent, as he is the 17 custodian having day-to-day control over petitioner, the only person who can produce “the 18 body” of the petitioner. Brittingham v. United States,

(9th Cir. 1992) 19 (quoting Guerra v. Meese,

(D.C. Cir. 1986)). 20 BACKGROUND 21 The first habeas petition was denied on the merits. (Diaz, No. 10-cv-05298-PJH, 22 Dkt. No. 20.) Diaz appealed, but the Ninth Circuit Court of Appeals dismissed his appeal 23 as untimely, and denied his motion for reconsideration. (Id., Dkt. Nos. 31 and 30.) The 24 prior and pending petitions are challenges to the 2008 California state conviction Diaz 25 received in the Santa Clara Superior Court for first degree murder, for which he received a 26 sentence of 50 years to life in state prison. (Id., Order Denying Petition, Dkt. No. 20 at 1; 27 Pet., Dkt. No. 1 at 7 (Superior Court No. CC510985); Instant Petition, Dkt. No. 1 at 1 1 DISCUSSION 2 The pending petition is barred by the rule against filing a second or successive 3 || petition. As noted, Diaz has filed at least one previous petition regarding the same state 4 || court judgment challenged in the pending petition. In order to file a second or successive 5 || petition, a petitioner must obtain an order from the Court of Appeals authorizing the 6 || district court to consider the petition. See

(b)(3)(A). Without that 7 || authorization, a district court lacks jurisdiction over the petition. Burton v. Stewart, 549 8 || U.S. 147, 153 (2007). Diaz has not shown that he has received such authorization. 9 || Accordingly, the pending petition must be dismissed as second or successive, the filing of 10 || which has not been authorized by the Court of Appeals. The petition is DISMISSED. 11 CONCLUSION 2 The instant petition is DISMISSED as second or successive, the filing of which has 5 13 || not been authorized by the Court of Appeals. S 14 A certificate of appealability will not issue. Petitioner has not shown “that jurists of 3 15 || reason would find it debatable whether the petition states a valid claim of the denial of a a 16 || constitutional right and that jurists of reason would find it debatable whether the district 3 17 court was correct in its procedural ruling.” Slack v. McDaniel,

(2000). 18 Diaz’s motion to proceed in forma pauperis is GRANTED. (Dkt. No. 10.) 19 The Clerk shall enter Christian Pfeiffer, the warden of the prison in which Diaz is 20 || housed, as the sole respondent in this action. 21 The Clerk shall terminate all pending motions, enter judgment in favor of 22 || respondent, and close the file. 23 IT IS SO ORDERED. 24 || Dated: June 28, 2023 io M.Qe 2° IELIAM H. ORRICK 26 United States District Judge 27 28