1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ROGELIO MAY RUIZ, F59761, Case No. 23-cv-04777-CRB (PR) 6 Petitioner, ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS AS 7 v. SECOND OR SUCCESSIVE PETITION 8 JEFF LYNCH, Warden, (ECF No. 3) 9 Respondent. 10 Petitioner, a state prisoner currently incarcerated at California State Prison, Sacramento, 11 has filed a pro se second or successive petition for a writ of habeas corpus under

12 challenging his 2007 conviction and sentence from Santa Clara County Superior Court. His first 13 || federal petition was dismissed as untimely on February 28, 2019. See Ruiz v. Baughman, No. 17- S 14. || cv-00338-CRB (N.D. Cal. Feb. 28, 2019) (order granting motion to dismiss petition as untimely). 3 15 A second or successive petition may not be filed in this court unless petitioner first obtains 16 || from the United States Court of Appeals for the Ninth Circuit an order authorizing this court to 5 17 || consider the petition. See

(b)(3)(A). Section 2244(b) applies here because the 5 18 || dismissal of petitioner’s first federal petition as barred by the statute of limitation constitutes a 19 || decision on the merits. See McNabb v. Yates,

(9th Cir. 2009). But petitioner 20 || has not obtained the requisite order from the Ninth Circuit. The instant petition accordingly 1s 2] DISMISSED without prejudice to refiling if petitioner obtains the requisite order. 22 But based solely on petitioner’s affidavit of poverty, his application to proceed in forma 23 || pauperis (IFP) under

(ECF No. 3) is GRANTED. 24 The clerk is directed to close the case and terminate all pending motions as moot. 25 IT ISSO ORDERED. 26 || Dated: November 9, 2023 27 CHARLES R. BREYER 28 United States District Judge