Evans v. Smith

Filing 11

ORDER OF DISMISSAL. Signed by Magistrate Judge Laurel Beeler on 5/16/2016. (Attachments: # 1 Application)(lsS, COURT STAFF) (Filed on 5/16/2016)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 JAMES EVANS, 12 Case No. 16-cv-01157-LB Plaintiff, 13 v. ORDER OF DISMISSAL 14 LAURIE SMITH, 15 [Re: ECF No. 5 ] Defendant. 16 James Evans, currently incarcerated at the Santa Clara County Jail, has filed this pro se action 17 18 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to proceed before a 19 magistrate judge. (ECF No. 7.)1 In his petition, Mr. Evans challenges his 2005 conviction and 20 sentence from the Santa Clara County Superior Court. 21 Mr. Evans is currently incarcerated on a 2015 conviction, and that his sentence on the 2015 22 conviction was affected by the existence of the 2005 conviction and/or sentence. (ECF No. 8 at 1, 23 4.) He filed an appeal from the 2015 conviction, and that the appellant’s opening brief in that 24 appeal was filed on May 2, 2016. See People v. Evans, Cal. Ct. App. Case No. H042298 (docket 25 sheet available at http://appellatecases.courtinfo.ca.gov.) This court does not read the petition in 26 this action to be a challenge to the 2015 conviction, as the petition is clearly marked as challenging 27 1 28 Citations are to the Electronic Case File (“ECF”); pin cites are to the ECF-generated page numbers at the tops of the documents. 1 the 2005 conviction. (ECF No. 5 at 1.) If Mr. Evans wishes to challenge his 2015 conviction, he 2 may file a separate petition for writ of habeas corpus in this court, but not until after his state court 3 remedies are exhausted. The habeas petition in this action is not Mr. Evans’ first federal habeas petition concerning his 4 5 2005 conviction and sentence. His first federal habeas petition challenging that conviction and 6 sentence, Evans v. Gipson, No. C 11-3129 YGR, was dismissed on September 12, 2012, as 7 untimely. No appeal was taken from the dismissal of that habeas petition. A petitioner generally may not file more than one habeas petition in federal court to challenge 8 9 a state court conviction/sentence. A second or successive habeas petition to challenge a conviction and/or sentence may not be filed in this court unless the petitioner first obtains from the United 11 United States District Court Northern District of California 10 States Court of Appeals for the Ninth Circuit an order authorizing this court to consider the 12 petition. 28 U.S.C. § 2244(b)(3)(A). Mr. Evans has not obtained an order from the Ninth Circuit permitting the filing of a second or 13 14 successive habeas petition. This court will not entertain a new habeas petition from Mr. Evans 15 challenging the 2005 conviction and/or sentence until he first obtains permission from the Ninth 16 Circuit to file such a petition. This action is DISMISSED without prejudice to Mr. Evans filing a 17 second or successive habeas petition in this court to challenge the 2005 conviction and/or sentence 18 after he obtains the necessary order from the Ninth Circuit. 19 If Mr. Evans wants to attempt to obtain the necessary order from the Ninth Circuit, he should 20 file an "Application For Leave To File Second Or Successive Petition" in the Ninth Circuit (at 95 21 Seventh Street, San Francisco, CA 94103). A copy of the form application is enclosed with this 22 order for his convenience. 23 The clerk shall close the file. 24 IT IS SO ORDERED. 25 Dated: May 16, 2016 ______________________________________ LAUREL BEELER United States Magistrate Judge 26 27 28 s 2 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 JAMES EVANS, Case No. 3:16-cv-01157-LB Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 8 LAURIE SMITH, Defendant. 9 10 United States District Court Northern District of California 11 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 12 13 14 15 16 That on May 16, 2016, 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. 17 18 19 20 James Evans F-06497 - Jail CLH006 - 16001590 Santa Clara County, Main Jail North 150 West Hedding St. San Jose, CA 95110 21 22 Dated: May 16, 2016 23 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Lashanda Scott, Deputy Clerk to the Honorable LAUREL BEELER 3

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?