Burton v. Chappell

Filing 4

ORDER OF DISMISSAL; GRANTING Leave to Proceed in forma pauperis.Signed by Judge Jeffrey S. White on 2/26/13. (jjoS, COURT STAFF) (Filed on 2/26/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TERENCE A. BURTON,

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Petitioner,

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vs.

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KEVIN CHAPPELL, Warden,

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Respondent.

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No. C 12-6013 JSW (PR)

ORDER OF DISMISSAL; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS

(Docket No. 3)

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Petitioner, a state prisoner currently, has filed a petition for a writ of habeas

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corpus pursuant challenging a conviction and sentence obtained state court. Petitioner’s

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prior petition to this Court challenging the same conviction and sentence was dismissed

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as untimely. Burton v. Martel, No. 12-6013 JSW (PR). The judgment in that case is

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currently on appeal. A second or successive petition may not be filed in this court unless

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petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an

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order authorizing this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A).

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Petitioner has not sought or obtained such an order from the United States Court of

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Appeals for the Ninth Circuit. Even if he has new claims, he must still obtain the

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necessary authorization under Section 2244(b) from the United States Court of Appeals

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before he may proceed. And to whatever extent Petitioner is challenging the validity of a

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previous conviction from 1987 because it was used to enhance the sentence on his

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present conviction, such a claim is barred by Lackawanna County Dist. Attorney v. Coss,

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532 U.S. 394, 401-04 (2001) (barring challenge to constitutionality of expired conviction

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used to enhance current sentence). Accordingly, the instant petition is DISMISSED.

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Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district

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court to rule on whether a Petitioner is entitled to a certificate of appealability in the

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same order in which the petition is decided. Petitioner has failed to make a substantial

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showing that a reasonable jurist would find this Court's denial of his petition debatable or

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wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of

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appealability is warranted in this case.

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Petitioner’s application for leave to proceed in forma pauperis (docket number 3)
is GRANTED.

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The Clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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DATED: February 26, 2013
JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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TERENCE BURTON,
Plaintiff,

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Case Number: CV12-06013 JSW
CERTIFICATE OF SERVICE

v.
KEVIN CHAPPELL et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on February 26, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Terence A. Burton P58217
San Quentin State Prison
San Quentin, CA 94974

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Dated: February 26, 2013

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk