Starks v. Hennessey

Filing 15

ORDER DENYING MOTION by Judge Phyllis J. Hamilton denying 14 Motion for Evidence and to Reopen Case. Certificate of Appealability is DENIED. (Certificate of Service Attached) (kcS, COURT STAFF) (Filed on 6/26/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARION CEDRIC STARKS, Petitioner, 8 Re: Dkt. No. 14 MICHAEL HENNESSEY, Respondent. 11 United States District Court Northern District of California ORDER DENYING MOTION v. 9 10 Case No. 11-cv-03649-PJH 12 13 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254. The petition was filed in 2011 and challenged a 1994 and 15 1998 conviction. It was denied as untimely on September 23, 2011. Petitioner has 16 recently submitted several filings seeking to reopen the case because he was innocent. 17 He also argues that he was unable to timely file the petition because he was in the 18 hospital. 19 To the extent that petitioner seeks to reopen this case pursuant to Fed. R. Civ. P. 20 60(b), this motion is untimely by many years. To the extent that petitioner seeks to file a 21 second petition he must obtain permission from the Ninth Circuit. “Before a second or 22 successive application permitted by this section is filed in the district court, the applicant 23 shall move in the appropriate court of appeals for an order authorizing the district court to 24 consider the application.” 28 U.S.C. § 2244(b)(3)(A). 25 Moreover, petitioner is no longer in custody and he includes a letter stating that he 26 has been under the care of a doctor outside of prison since at least June 2012. The 27 federal writ of habeas corpus is only available to persons "in custody" at the time the 28 petition is filed. See 28 U.S.C. §§ 2241(c), 2254(a); Carafas v. LaVallee, 391 U.S. 234, 1 238 (1968). This requirement is jurisdictional. Id. A petitioner who files a habeas petition 2 after he has fully served his sentence and who is not subject to court supervision is not 3 "in custody" for the purposes of this court's subject matter jurisdiction and his petition is 4 therefore properly denied. See De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 5 1990). To the extent petitioner seeks to file a new petition, he must demonstrate that he 6 is in custody. 7 Petitioner’s motion (Docket No. 14) is DENIED. Because reasonable jurists would 8 not find the result here debatable, a certificate of appealability (“COA”) is DENIED. See 9 Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for COA). 10 United States District Court Northern District of California 11 IT IS SO ORDERED. Dated: June 26, 2017 12 13 PHYLLIS J. HAMILTON United States District Judge 14 15 \\candoak.cand.circ9.dcn\data\users\PJHALL\_psp\2011\2011_03649_Starks_v_Hennessey_(PSP)\11-cv-03649-PJH-ord.docx 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 MARION CEDRIC STARKS, Case No. 11-cv-03649-PJH Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 8 MICHAEL HENNESSEY, 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 June 26, 2017, 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 Marion Cedric Starks 150 Otis Street, Apt 609 San Francisco, CA 94103 20 21 Dated: June 26, 2017 22 23 24 Susan Y. Soong Clerk, United States District Court 25 26 27 By:________________________ Kelly Collins, Deputy Clerk to the Honorable PHYLLIS J. HAMILTON 28 3

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