Bell v. Arnold

Filing 4

ORDER FOR PETITIONER TO SHOW CAUSE. (Certificate of Service Attached). Signed by Judge Phyllis J. Hamilton on 6/28/16. (napS, COURT STAFF) (Filed on 6/28/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSEPH BELL, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 16-cv-03034-PJH ORDER FOR PETITIONER TO SHOW CAUSE v. ERIC ARNOLD, Defendant. 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. He has paid the filing fee. Petitioner challenges a 15 November 8, 1996, conviction from the San Francisco County Superior Court. Petitioner 16 argues that he received an unauthorized sentence in excess of the trial court’s jurisdiction 17 because of state Propositions that were passed in 1990 before his trial and sentence. 18 However, court records indicate that petitioner already filed a habeas petition in this court 19 challenging the same conviction. See Bell v. Lamarque, Case No. 99-cv-3562-PJH. 20 That case was denied on June 20, 2003, and an appeal was later denied. This appears 21 to be a successive petition. 22 “A claim presented in a second or successive habeas corpus application under 23 section 2254 that was not presented in a prior application shall be dismissed . . .” 28 24 U.S.C. § 2244(b)(2). This is the case unless, 25 26 27 28 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 1 2 3 (ii) the facts un t nderlying th claim, if proven and viewed he d in light of the eviden nce as a w whole, wou be suff uld ficient to establish by clear and convin a ncing evide ence that, but for constitution nal error, no reason nable factf finder wou uld have found the applicant gu of the u a uilty underlying offense. 28 U.S.C. § 2244(b)(2). 2 4 “Before a second or successive application permitted by this sec s s n ction is filed 5 in the district court, the applicant sh move in the appropriate cour of appeals for an t a hall n rt s 6 ord authoriz der zing the dis strict court to consider the applica o ation.” 28 U U.S.C. § 7 2244(b)(3)(A) It does not appear that petition has rece ). ner eived autho orization fro the om 8 Nin Circuit to file this petition, therefore he w be order to show cause why this case nth t p will red w y 9 sho ould not be dismissed. Petitioner must show cause by July 29, 2 e w y 2016, why t this case 10 sho ould not be dismissed as successive. Failure to file a response w result in dismissal. e will 11 United States District Court Northern District of California IT IS SO ORDER S RED. 12 Da ated: June 28, 2016 2 13 14 15 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 16 17 \\can ndoak.cand.circ9 9.dcn\data\users\PJHALL\_psp\2 2016\2016_03034 4_Bell_v_Arnold d_(PSP)\16-cv-03 3034-PJH-osc-p. .docx 18 19 20 21 22 23 24 25 26 27 28 2 1 UNITED STATES D DISTRICT C COURT 2 NORTHER DISTRIC OF CAL N RN CT LIFORNIA 3 4 JO OSEPH BE ELL, Case No. 16-cv-030 034-PJH Plaintiff, 5 v. CERTIFIC CATE OF S SERVICE 6 7 ERIC ARNO OLD, Defendant. 8 9 10 United States District Court Northern District of California 11 12 13 14 I, the undersigned hereby ce u d, ertify that I am an emp ployee in th Office of the Clerk, he f S. C hern Distric of Californ ct nia. U.S District Court, North That on June 28, 2016, I SERVED a tru and corr ue rect copy(ie of the at es) ttached, by pla acing said copy(ies) in a postage paid envelo addres c ope ssed to the person(s) h hereinafter list ted, by depositing said envelope in the U.S. Mail, or by placing sa copy(ies into an d y aid s) inte er-office de elivery receptacle locat in the C ted Clerk's office. 15 16 17 Jos seph Bell K-3 30059 P.O Box 4000 O. Va acaville, CA 95696 A 18 19 20 ated: June 28, 2016 2 Da 21 22 Susan Y. So oong Clerk, United States Dis d strict Court C 23 24 25 y:________ _________ _________ By Nichole Peric Deputy C c, Clerk to the e Honorable P PHYLLIS J. HAMILTON N 26 27 28 3

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