Stone v. Superior Court of California, County of Sacramento

Filing 11

ORDER signed by Magistrate Judge Allison Claire on 2/14/2013 ORDERING that petitioner's 4 application to proceed IFP is GRANTED; petitioner's 9 motion for appointment of counsel is DENIED as moot; and this action is DISMISSED without prejudice. CASE CLOSED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON PARNELL STONE,
Petitioner,

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No. 2:12-cv-2986 AC P

vs.

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SUPERIOR COURT OF
CALIFORNIA, COUNTY
OF SACRAMENTO,

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Respondent.

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/

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ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for relief

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from final judgment, pursuant to Federal Rule of Civil Procedure 60, together with a request to

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proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff has consented to the

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jurisdiction of the undersigned. See ECF No. 5.

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to

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afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is

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granted. See 28 U.S.C. § 1915(a).

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In his motion, plaintiff seeks relief from a 2006 state court conviction for six
counts of lewd and lascivious conduct with a child under the age of 14. See ECF No. 1 at 1. The
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court’s records reveal that petitioner has previously filed an application for a writ of habeas

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corpus attacking the 2006 conviction and sentence challenged in this case. The previous

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application, Stone v. Martel (“Stone I”), Case No. 10-cv-3454 KJM GGH P, was filed on

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December 27, 2010, and dismissed as untimely on March 26, 2012.

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The court’s records reflect that, since Stone I was decided, petitioner has filed at

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least one other petition challenging the same 2006 conviction. See Stone v. Cates (“Stone II”),

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Case No. 2:12-cv-2174 GEB GGH P. Stone II was filed on August 20, 2012, and dismissed

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without prejudice as successive on October 17, 2012.

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Petitioner now challenges his state court conviction under Rule 60, instead of

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under 28 U.S.C. § 2254. Even if this court had the authority to correct a state court criminal

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judgment under Rule 60, which it does not, it has long been the rule that Rule 60 may not be

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used to avoid the prohibition against second or successive petitions set forth in 28 U.S.C. §

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2244(b). Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). The current motion represents a

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successive challenge to the same 2006 conviction at issue in each of petitioner’s prior petitions.

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See also ECF No. 8 at 7 (relief requested includes writ of habeas corpus). Accordingly, this

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court lacks jurisdiction to entertain the application unless the Court of Appeals for the Ninth

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Circuit has authorized this court to do so. See 28 U.S.C. § 2244(b)(3)(A). See also, e.g.,

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Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012) (“A petitioner must obtain leave from

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the Court of Appeals in order to file a ‘second or successive’ habeas petition with the district

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court.”). The current application includes no information to suggest that petitioner has sought or

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received permission from the Court of Appeals to file the instant petition. Therefore, petitioner’s

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application will be dismissed without prejudice to its refiling upon obtaining authorization from

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the United States Court of Appeals for the Ninth Circuit.

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In accordance with the above, IT IS HEREBY ORDERED that

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1. Petitioner’s application to proceed in forma pauperis (ECF No. 4) is granted;

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2. Petitioner’s motion for appointment of counsel (ECF No. 9) is denied as moot;
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and
3. This action is dismissed without prejudice.
DATED: February 14, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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ac:rb/ston2986.success

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