Johnson v. Brazelton

Filing 4

ORDER signed by Magistrate Judge Allison Claire on 5/13/2013 ORDERING that the Clerk shall TRANSFER this action to the Ninth Circuit Court of Appeals. CASE CLOSED. (cc: Ninth Circuit) (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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KEITH DARNELL JOHNSON,
Petitioner,

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No. 2:13-cv-0880 AC P

vs.

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P. BRAZELTON, Warden,

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Respondent.

ORDER
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 37-year-to-life sentence to

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state prison for, inter alia, kidnapping and sexual battery. See Petition at 1.
Petitioner raises the following grounds: 1) judicial misconduct; 2) ineffective

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assistance of trial counsel;1 3) cruel and punishment/insufficient evidence to support sentencing

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enhancements; 4) ineffective assistance of appellate counsel. Id. at 4-6.
Court records demonstrate that the claims of the instant petition challenging the

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same conviction were, for the most part, previously adjudicated in Case No. 2:06-cv-0554 MCE

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1

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The court infers the nature of ground two from the portion of the claim petitioner
has left visible.
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CHS P. “Before a second or successive application . . . is filed in the district court, the applicant

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shall move in the appropriate court of appeals for an order authorizing the district court to

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consider the application.” 28 U.S.C. § 2244(3)(A). Under Ninth Circuit Rule 22-3, “[i]f a

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second or successive petition or motion, or an application for leave to file such an application or

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motion, is mistakenly submitted to the district court, the district court shall refer it to the court of

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appeals.”

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The instant petition is a second or successive petition to Case No. 2:06-cv-0554

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MCE CHS P because it challenges the same conviction and sentence addressed therein.

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Moreover, petitioner raises virtually the identical claims denied on the merits therein. To the

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extent he may be intending to bring different claims, before he may proceed with this action,

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petitioner must obtain an order from the Ninth Circuit Court of Appeals to proceed with this

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action. Accordingly, the court will order this action transferred to the Ninth Circuit.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed

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to transfer this action to the Ninth Circuit Court of Appeals.

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DATED: May 13, 2013

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:009

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john0880.scs

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