Turner v. Price

Filing 11

ORDER OF DISMISSAL. Signed by Judge Jon S. Tigar on April 24, 2017. (Attachments: # 1 Certificate/Proof of Service) (wsn, COURT STAFF) (Filed on 4/25/2017)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 JOSEPH D. TURNER, 7 Petitioner, 8 ORDER OF DISMISSAL v. 9 J. PRICE, 10 Respondent. 11 United States District Court Northern District of California Case No. 16-cv-07007-JST (PR) 12 On December 7, 2016, petitioner, then a state prisoner, filed this pro se petition for writ of 13 14 habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the $5.00 filing fee. Petitioner was 15 released from custody on April 9, 2017. See Dkt. No. 7.1 Petitioner filed a previous petition for writ of habeas corpus with this Court, challenging 16 17 the same conviction and sentence. See Case No. C 14-4374 JST (PR). The Court denied the first 18 petition on the merits on April 8, 2016. 19 The Court finds the present petition is a second or successive petition attacking the same 20 conviction and sentence as petitioner’s prior federal habeas petition. A successive petition may 21 not be filed in this court unless petitioner first obtains from the United States Court of Appeals for 22 the Ninth Circuit an order authorizing this Court to consider the petition. See 28 U.S.C. § 2244(b) 23 (3)(A). Petitioner has not sought or obtained such an order from the United States Court of 24 Appeals for the Ninth Circuit. Even if petitioner has new claims, he must still obtain the necessary 25 authorization under Section 2244(b) from the United States Court of Appeals before he may 26 1 27 28 A habeas petitioner must be in custody under the conviction or sentence under attack at the time the petition is filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). If a petitioner is in custody at the time he files his federal habeas petition, his subsequent release from custody does not deprive the court of its jurisdiction. See Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005). 1 proceed. The petition is accordingly DISMISSED without prejudice to re-filing if petitioner 2 obtains the necessary order. 3 The Clerk shall enter judgment and close the file. 4 IT IS SO ORDERED. 5 Dated: April 24, 2017 6 7 JON S. TIGAR United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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?