Peng v. Tilton et al

Filing 11

ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE PETITION; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Claudia Wilken on 10/7/2011. (ndr, COURT STAFF) (Filed on 10/7/2011)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE PETITION; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS Petitioner, 5 6 No. C 11-01685 CW (PR) KUN S. PENG, v. 7 JAMES TILTON, Director of CDCR, BEN CURRY, Warden, 8 Respondents. 9 United States District Court For the Northern District of California 10 (Docket nos. 6 & 8) / Petitioner, a state prisoner, filed the present pro se 11 petition for a writ of error coram nobis, challenging the validity 12 of his 1992 conviction for second degree murder, obtained by way of 13 a guilty plea entered in the Superior Court of Santa Clara County. 14 The record shows that Petitioner filed a previous petition for 15 a writ of habeas corpus with this Court, challenging the same 1992 16 conviction and sentence. 17 MMC (PR). 18 See Peng v. Tilton, Case No. C 07-4797 The Court denied the previous petition on the merits. As noted, Petitioner has titled the instant petition as one 19 seeking a writ of error coram nobis. 20 affords a remedy to attack a conviction when the petitioner has 21 served his sentence and is no longer in custody. 22 v. United States, 24 F.3d 42, 45 (9th Cir. 1994). 23 remains in custody at California State Prison – Solano, where he is 24 serving a sentence of fifteen years to life in state prison for his 25 1992 conviction. 26 unavailable to him. 27 28 The writ of error coram nobis See Telink, Inc. Here, Petitioner Accordingly, the writ of error coram nobis is Additionally, Petitioner cannot challenge his conviction by way of a petition for a writ of habeas corpus under 28 U.S.C. 1 § 2254, because the present petition is a second or successive 2 petition attacking the same 1992 conviction and sentence as 3 Petitioner's prior federal habeas petition. 4 petition containing previously raised or new claims may not be 5 filed in the district court unless the petitioner first obtains 6 from the United States Court of Appeals an order authorizing the 7 district court to consider the petition. 8 § 2244(b)(3)(A). A second or successive 28 U.S.C. Petitioner here has not done so. Accordingly, the instant petition is DISMISSED without 10 United States District Court For the Northern District of California 9 prejudice to Petitioner’s refiling the petition if he obtains the 11 necessary order. 12 13 In light of Petitioner’s lack of funds, the application to proceed in forma pauperis is GRANTED. 14 CONCLUSION 15 For the reasons stated above, the petition is DISMISSED, 16 pursuant to 28 U.S.C. § 2244(b) and without prejudice, as a second 17 or successive petition. 18 The application to proceed in forma pauperis is GRANTED. 19 The Clerk of the Court shall enter judgment and close the 20 file. 21 This Order terminates Docket nos. 6 and 8. 22 IT IS SO ORDERED. 23 Dated: 10/7/2011 24 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 25 26 27 28 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 1 2 3 KUN SHAN PENG, Case Number: CV11-01685 CW 4 5 6 7 Plaintiff, CERTIFICATE OF SERVICE v. JAMES TILTON et al, Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / 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 October 7, 2011, 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. 13 14 17 Kun S. Peng H52106 Bldg. #15 J4 Upper Solano-CSP 2100 Peabody Road P.O. Box 4000 Vacaville, CA 95696-4000 18 Dated: October 7, 2011 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 3

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