LaFlamme v. Henderson

Filing 10

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 12/13/12. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/13/2012)

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*E-Filed 12/13/12*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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ORDER OF DISMISSAL

Petitioner,

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No. C 12-4567 RS (PR)

DONALD R. LAFLAMME,

v.
HENDERSON, Warden,
Respondent.

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INTRODUCTION

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Petitioner seeks federal habeas relief from his state convictions. The petition for such

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relief is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the

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Rules Governing Section 2254 Cases.

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BACKGROUND

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According to the petition, in 1982, petitioner pleaded guilty in the San Francisco

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County Superior Court to second degree murder. The petition does not state the length of the

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sentence.

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No. C 12-4567 RS (PR)
ORDER OF DISMISSAL

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DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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A district court considering an application for a writ of habeas corpus shall “award the writ

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or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

United States District Court
For the Northern District of California

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). As grounds for federal habeas

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relief, petitioner alleges that (1) the trial court imposed an impermissible sentence, and

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(2) the denial of parole violates his right to due process.

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The first claim is barred by the rule against filing a second, or successive petition. He

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has filed at least two previous petitions regarding the same conviction at issue here, viz., No.

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C 96-1696 VRW (N.D. Cal. Aug. 13, 1997), and No. C 07-5505 VRW (N.D. Cal. Nov. 20,

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2007). In order to file a second or successive petition, the petitioner must obtain an order

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from the court of appeals authorizing the district court to consider the petition. See 28 U.S.C.

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§ 2244(b)(3)(A). Because petitioner has not shown that he has received such authorization,

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the instant petition must be dismissed as second or successive to the prior-filed petition.

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Accordingly, the petition is DISMISSED with prejudice.

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His second claim is DISMISSED without prejudice. If he wishes to seek relief on
such claim, he must file a separate habeas petition.

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No. C 12-4567 RS (PR)
ORDER OF DISMISSAL

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Petitioner’s motions to proceed in forma pauperis (Docket Nos. 4 and 6) are

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DENIED. The papers indicate that he can afford the $5.00 filing fee for habeas actions.

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Petitioner is directed to make such payment to the Court forthwith. His motions to appoint

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counsel (Docket No. 3), for court-ordered legal supplies (Docket No. 7), and for a hearing

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schedule (Docket No. 9), are DENIED. The Clerk shall terminate Docket Nos. 3, 4, 6, 7 and

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9, enter judgment in favor of respondent, and close the file.

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A certificate of appealability will not issue. Petitioner has not shown “that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it debatable whether the district court

United States District Court
For the Northern District of California

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.
DATED: December 13, 2012
RICHARD SEEBORG
United States District Judge

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No. C 12-4567 RS (PR)
ORDER OF DISMISSAL