Viet v. Martel

Filing 28

ORDER Dismissing Successive Petition. Motions terminated: 26 MOTION Under Rule 60(b) filed by Roger Viet. Signed by Judge Thelton E. Henderson on 08/20/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 8/21/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROGER VIET,

No. C 09-4175 TEH (PR)

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ORDER DISMISSING SUCCESSIVE
PETITION

Petitioner,
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v.
United States District Court
For the Northern District of California

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Doc. #26

M. MARTEL, Warden,
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Respondent.
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/
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Petitioner, a state prisoner presently incarcerated at the

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Mule Creek State Prison in Ione, California, has filed a document in

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this closed habeas case entitled, “Motion Under Rule 60(b).”

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#26.

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original petition for a writ of habeas corpus on September 9, 2009.

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Doc. #1.

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should not be granted on December 1, 2009.

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filed an answer and Petitioner filed a traverse.

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## 6, 12.

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petition and a judgment in favor of Respondent.

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Petitioner appealed and, on September 27, 2012, the Ninth Circuit

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denied his request for a certificate of appealability.

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Petitioner filed a petition for a writ of certiorari in the United

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States Supreme Court, which was denied on March 18, 2013.

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## 24, 25.

Doc.

The docket of this case shows that Petitioner filed his

The Court issued an Order to Show Cause why the petition
Doc. #5.

Respondent

Doc.

On May 17, 2011, the Court issued an order denying the
Doc. ## 15, 16.

Doc. #23.

Doc.

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On August 9, 2013, Petitioner filed the instant “Motion
Under Rule 60(b).”

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Rule 60(b) motion, it is, in effect, a successive petition because

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he reargues the claims he asserted in his original petition.

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Petitioner’s argument that his case should be re-opened because

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Governor Jerry Brown circumvented federal review under the

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Antiterrorism and Effective Death Penalty Act (AEDPA) by

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mischaracterizing his claims as state-law claims is without merit.

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A second or successive petition may not be filed in this

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United States District Court
For the Northern District of California

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Court unless Petitioner first obtains from the United States Court

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of Appeals for the Ninth Circuit an order authorizing this Court to

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consider the petition.

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has not obtained such an order from the Ninth Circuit.

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accordingly is DISMISSED without prejudice to refiling if Petitioner

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obtains the necessary order.

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Although Petitioner styles this document as a

See 28 U.S.C. § 2244(b)(3)(A).

Petitioner
The petition

The clerk shall terminate all pending motions as moot and
close the file.

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IT IS SO ORDERED.

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DATED

08/20/2013
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\HC.09\Viet-09-4175-Dis Successive Pet.wpd

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