Johnson v. Secretary of Corrections

Filing 9

ORDER DENYING Petitioner's 8 Motion for Reconsideration, signed by Magistrate Judge Sheila K. Oberto on 08/18/17. (Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 ERIC JOHNSON, 11 Petitioner, 12 13 Case No. 1:17-cv-00919-SKO HC v. SECRETARY OF CORRECTIONS, 14 Respondent. ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION (Docs. 8) 15 Petitioner is a state prisoner proceeding pro se whose petition for writ of habeas corpus 16 17 pursuant to 28 U.S.C. § 2254 was dismissed as second or successive on August 4, 2017. Because 18 this Court had previously denied a petition for writ of habeas corpus arising from the same 19 conviction and alleging the same claims, and because Petitioner had not petitioned the Ninth Circuit 20 Court of Appeals for leave to file a second or successive petition, applicable law required the Court 21 to dismiss the petition for lack of jurisdiction. See 28 U.S.C. § 2244(b). Petitioner has now filed a 22 letter requesting reconsideration. Petitioner contends that because this Court addressed his prior petition following the direct 23 24 appeal, he may again pursue a petition for writ of habeas corpus following resolution of state 25 habeas proceedings. Petitioner misunderstands applicable law. “A claim presented in a second or 26 successive habeas corpus application under section 2254 that was presented in a prior application 27 shall be dismissed.” 28 U.S.C. § 2244(b)(1). As indicated in the August 4, 2017, order dismissing 28 /// 1 1 the petition, Petitioner alleged the claims in both the above-captioned petition and in the prior 2 petition (Johnson v. Secretary of Corrections (1:15-cv-01771-JLT HC)). Under applicable law, the District Court lacks jurisdiction to address the petition filed in this 3 4 case. Because Petitioner has already filed a petition for habeas corpus related to the same 5 conviction, he cannot file another petition in the District Court without first obtaining permission 6 (leave to file a second or successive complaint) from the U.S. Court of Appeals for the Ninth 7 Circuit. Petitioner's motion for reconsideration of the Court's dismissal of his petition for writ of 8 9 10 11 12 13 14 habeas corpus pursuant to 28 U.S.C. § 2254 is hereby denied, without prejudice to Petitioner’s seeking leave to file a second or successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A). IT IS SO ORDERED. Dated: August 18, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 .

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