Elliott v. Fox

Filing 10

ORDER by Judge Edward M. Chen Denying 8 Petitioner's Motion to Vacate Judgment. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 11/13/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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TRAVIS NEAL ELLIOTT,
Petitioner,

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ORDER DENYING PETITIONER’S
MOTION TO VACATE JUDGMENT

v.
ROBERT FOX,

Docket No. 8

Respondent.

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For the Northern District of California

United States District Court

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Case No. 17-cv-05253-EMC

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This action was dismissed on September 26, 2017, because the petition for writ of habeas

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corpus was a second or successive petition, and Petitioner had not first obtained permission from

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the United States Court of Appeals to file such a petition. See 28 U.S.C. § 2244(b)(3)(A).

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Petitioner has filed a motion to vacate the judgment and order of dismissal. Docket No. 8.

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He argues that he does not need permission to file a second or successive petition because his

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claims are not the same as the claims asserted in his first petition for writ of habeas corpus.

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In federal court terminology, a successive petition raises “previously rejected claims,” and

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an abuse of the writ occurs when a later petition asserts new “claims that could have been raised in

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an earlier action.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013). A later petition that

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contains new claims and is an abuse of the writ sometimes is called an “abusive petition,” or a

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“second or subsequent” petition. See McCleskey v. Zant, 499 U.S. 467, 470, 485 (1991) (“The

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doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain

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a claim presented for the first time in a second or subsequent petition for a writ of habeas

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corpus.”); 28 U.S.C. § 2244(b) (limiting consideration of a “claim presented in a second or

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successive” petition).

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Here, Petitioner is challenging the same murder conviction that he challenged in his first

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federal petition for writ of habeas corpus. The fact that the claims in his 2017 petition may be new

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does not allow him to avoid the need to obtain permission because the rule requiring permission

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applies to a petition that is a second petition or a successive petition, or a mixture of both. If his

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petition contains only new claims, it is referred to as a second petition. He therefore must obtain

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permission from the United States Court of Appeals to file that second petition before he can file

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the petition in this Court. The motion to vacate the judgment and order of dismissal is DENIED.

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Docket No. 8.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: November 13, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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