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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?