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Quezada v. Smith, No. 10-2738

Leave to File Second Habeas Writ Granted

In Quezada v. Smith, No. 10-2738, an application pursuant to 28 U.S.C. section 2244(b)(3) for leave to file in the district court a second petition for a writ of habeas corpus, the court granted the petition where 1) reexamination of an untimeliness ruling that was made with respect to a first habeas corpus petition may occur only in limited circumstances, such circumstances were not present in petitioner's case, and his current petition was properly considered "second"; and 2) petitioner made a sufficient showing to satisfy the court's "gate-keeping" responsibility under 28 U.S.C. section 2244(b)(3).

As the court wrote:  "The pending motion for leave of this Court to file in a district court a second petition for a writ of habeas corpus presents an initial issue of whether the petition really is a "second" petition within the meaning of 28 U.S.C. § 2244(b). In this instance, that issue turns on the extent, if any, to which this Court should reexamine the correctness of a district court's dismissal of a previous habeas corpus petition as time-barred. The motion also presents the issue of whether the motion satisfies the standards for filing a second habeas corpus petition."

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