Usher v. Hill

Filing 5

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 3/21/13. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 3/22/2013)

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*E-Filed 3/22/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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NATHANIEL USHER,

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Petitioner,

United States District Court
For the Northern District of California

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No. C 13-0766 RS (PR)
ORDER OF DISMISSAL

v.
RICK HILL, 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. For the reasons stated herein, the petition is

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DISMISSED.

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BACKGROUND
According to the petition, in 1981, an Alameda County Superior Court jury convicted

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petitioner of first degree murder. Petitioner received a sentence of 25 years-to-life in state

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prison. Petitioner alleges that his sentence is unconstitutional.

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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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No. C 13-0766 RS (PR)
ORDER OF DISMISSAL

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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

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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The petition is barred by the rule against filing a second or successive petition.

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Petitioner has filed at least one previous petition regarding this same conviction (and alleging

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a similar claim) at issue in the instant petition, viz., No. C 10-1816 RS (N.D. Cal. May 25,

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2010). In order to file a second or successive petition, the petitioner must obtain an order

United States District Court
For the Northern District of California

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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.

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Petitioner’s motion to proceed in forma pauperis (Docket Nos. 2 and 4) is DENIED.

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

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directed to make such payment to the Court forthwith.

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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

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The

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Clerk shall terminate Docket Nos. 2 and 4, enter judgment in favor of respondent, and close

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the file.

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IT IS SO ORDERED.
DATED: March 21, 2013
RICHARD SEEBORG
United States District Judge

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No. C 13-0766 RS (PR)
ORDER OF DISMISSAL