McKinley v. McDonald

Filing 5

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 1/17/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 1/17/2013)

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1 2 *E-Filed 1/17/13* 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION United States District Court For the Northern District of California 10 11 ORDER OF DISMISSAL Petitioner, 12 13 No. C 12-5048 RS (PR) ISAAC MCKINLEY, v. 14 J. MCDONALD, Warden, 15 Respondent. / 16 INTRODUCTION 17 18 Petitioner seeks federal habeas relief from his state convictions. The petition for such 19 relief is now before the Court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the 20 Rules Governing Section 2254 Cases. BACKGROUND 21 22 According to the petition, in 2005, petitioner pleaded guilty in the Santa Clara County 23 Superior Court to charges of battery and false imprisonment. He was sentenced to a total 24 term of 17 years. 25 DISCUSSION 26 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 27 custody pursuant to the judgment of a State court only on the ground that he is in custody in 28 No. C 12-5048 RS (PR) ORDER OF DISMISSAL 1 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 2 A district court considering an application for a writ of habeas corpus shall “award the writ 3 or issue an order directing the respondent to show cause why the writ should not be granted, 4 unless it appears from the application that the applicant or person detained is not entitled 5 thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in 6 the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See 7 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). As grounds for federal habeas 8 relief, petitioner alleges that (1) the trial court imposed an impermissible sentence, and 9 (2) the denial of parole violates his right to due process. United States District Court For the Northern District of California 10 The petition will be dismissed as a second or successive petition. Petitioner has filed 11 at least one previous habeas action regarding the same conviction at issue here, viz., 12 No. C 09-03865 RMW, which was filed here in the Northern District on August 24, 2009 and 13 dismissed on July 31, 2012. In order to file a second or successive petition, petitioner must 14 obtain an order from the court of appeals authorizing the district court to consider the 15 petition. See 28 U.S.C. § 2244(b)(3)(A). Because petitioner has not shown that he has 16 received such authorization, the instant petition must be dismissed as second or successive to 17 the prior-filed petition. Accordingly, the petition is DISMISSED with prejudice. 18 A certificate of appealability will not issue. Petitioner has not shown “that jurists of 19 reason would find it debatable whether the petition states a valid claim of the denial of a 20 constitutional right and that jurists of reason would find it debatable whether the district court 21 was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 22 23 24 25 Petitioner’s motion to proceed in forma pauperis (Docket No. 3) is GRANTED. The Clerk shall terminate Docket No. 3, enter judgment in favor of respondent, and close the file. IT IS SO ORDERED. DATED: January 17, 2013 RICHARD SEEBORG United States District Judge 26 27 28 2 No. C 12-5048 RS (PR) ORDER OF DISMISSAL

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