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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 TERENCE A. BURTON, 9 Petitioner, 10 vs. 11 KEVIN CHAPPELL, Warden, 12 Respondent. 13 ) ) ) ) ) ) ) ) ) ) ) No. C 12-6013 JSW (PR) ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 3) 14 15 Petitioner, a state prisoner currently, has filed a petition for a writ of habeas 16 corpus pursuant challenging a conviction and sentence obtained state court. Petitioner’s 17 prior petition to this Court challenging the same conviction and sentence was dismissed 18 as untimely. Burton v. Martel, No. 12-6013 JSW (PR). The judgment in that case is 19 currently on appeal. A second or successive petition may not be filed in this court unless 20 petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an 21 order authorizing this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). 22 Petitioner has not sought or obtained such an order from the United States Court of 23 Appeals for the Ninth Circuit. Even if he has new claims, he must still obtain the 24 necessary authorization under Section 2244(b) from the United States Court of Appeals 25 before he may proceed. And to whatever extent Petitioner is challenging the validity of a 26 previous conviction from 1987 because it was used to enhance the sentence on his 27 present conviction, such a claim is barred by Lackawanna County Dist. Attorney v. Coss, 28 532 U.S. 394, 401-04 (2001) (barring challenge to constitutionality of expired conviction 1 used to enhance current sentence). Accordingly, the instant petition is DISMISSED. 2 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district 3 court to rule on whether a Petitioner is entitled to a certificate of appealability in the 4 same order in which the petition is decided. Petitioner has failed to make a substantial 5 showing that a reasonable jurist would find this Court's denial of his petition debatable or 6 wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of 7 appealability is warranted in this case. 8 9 Petitioner’s application for leave to proceed in forma pauperis (docket number 3) is GRANTED. 10 The Clerk shall enter judgment and close the file. 11 IT IS SO ORDERED. 12 13 14 DATED: February 26, 2013 JEFFREY S. WHITE United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 TERENCE BURTON, Plaintiff, 7 8 9 10 Case Number: CV12-06013 JSW CERTIFICATE OF SERVICE v. KEVIN CHAPPELL et al, Defendant. / 11 12 13 14 15 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. 16 17 18 Terence A. Burton P58217 San Quentin State Prison San Quentin, CA 94974 19 Dated: February 26, 2013 20 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk

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