Mustafaa v. Sisto

Filing 14

ORDER by Judge Claudia Wilken granting 7 Motion to Dismiss Habeas Corpus Petition As Seccond Or Successive (scc, COURT STAFF) (Filed on 12/15/2008)

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner, filed the present pro se petition for writ of habeas corpus. Before the Court is Respondent's motion to dismiss the petition as a second or successive petition. Petitioner opposes v. D.K. SISTO, Warden, Respondent. / (Docket nos. 4, 7) ABDULLAH W. MUSTAFAA, Petitioner, No. C 07-06488 CW (PR) ORDER GRANTING RESPONDENT'S MOTION TO DISMISS HABEAS PETITION AS SECOND OR SUCCESSIVE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

the motion, and Respondent filed a reply to the opposition. The record shows that Petitioner has filed a previous petition for a writ of habeas corpus with this Court, challenging the same conviction and sentence. See Case No. C 99-03452 CW (PR). The

Court denied the first petition on the merits.

(Resp't Ex. 2.)

Petitioner filed a notice of appeal, and the Court granted a certificate of appealability (COA) on two claims involving ineffective assistance of counsel. The Ninth Circuit Court of Following extensive

Appeals appointed counsel for Petitioner.

briefing, on March 31, 2005, the Ninth Circuit affirmed the denial of the Sixth Amendment claims, expanded the COA, and granted relief on the claim that there was insufficient evidence that one of the prior convictions was sustained by Petitioner. (Resp't Ex. 3, 4.)

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The State sought rehearing, which was granted.

On June 7, 2005,

the Ninth Circuit issued a new opinion which again affirmed the denial of the Sixth Amendment claims, and also found sufficient evidence that Petitioner had sustained the prior conviction. (Resp't Exs. 3, 5.) On July 27, 2005, Petitioner filed a petition On October 3, (Resp't Ex. 3.)

for certiorari in the United States Supreme Court. 2005, the Supreme Court denied certiorari review. DISCUSSION

The Court finds the present petition is a second or successive petition attacking the same conviction and sentence as Petitioner's prior federal habeas petition. A second or successive petition

containing new claims may not be filed in the district court unless Petitioner first obtains from the United States Court of Appeals an order authorizing the district court to consider the petition. U.S.C. § 2244(b)(3)(A). Petitioner has not done so. 28

Furthermore, Petitioner's arguments in opposition to the motion to dismiss are without merit. The Court finds that

Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 because he is a state prisoner being held "pursuant to the judgment of a State court," 28 U.S.C. § 2254, and he is challenging his 1996 conviction on the grounds that his custody is unconstitutional. Petitioner cannot circumvent the bar

against second or successive petitions by labeling his current petition as proceeding pursuant to 28 U.S.C. § 2241. Nor can

Petitioner rely on the general provisions of 28 U.S.C. § 1651, which states, "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of 2

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their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651.

Accordingly, Respondent's motion to dismiss is GRANTED, and this petition is DISMISSED without prejudice to filing a new habeas action if Petitioner obtains the necessary order. CONCLUSION For the foregoing reasons, Respondent's motion to dismiss the petition as a second or successive petition (docket no. 7) is GRANTED. The petition is DISMISSED pursuant to 28 U.S.C.

§ 2244(b). The Clerk of the Court shall enter judgment in accordance with this Order, terminate all other pending motions as moot, including Petitioner's motion for judicial notice (docket no. 4), and close the file. This Order terminates Docket nos. 4 and 7. IT IS SO ORDERED. Dated: 12/15/08 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ABDULLAH W. MUSTAFAA, Plaintiff, v. D.K. SISTO et al, Defendant. /

Case Number: CV07-06488 CW CERTIFICATE OF SERVICE

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 December 15, 2008, 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.

Abdullah W. Mustafaa E24447 CSP-Solano II California State Prison-Solano P.O. Box 4000 Vacaville, CA 95696 Dated: December 15, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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