Bell v. Arnold

Filing 7

ORDER DENYING MOTION TO APPOINT COUNSEL AND DISMISSING CASE (Certificate of Service Attached) by Judge Phyllis J Hamilton denying 2 Motion to Appoint Counsel. (dtmS, COURT STAFF) (Filed on 8/1/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH BELL,
Petitioner,

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ORDER OF DISMISSAL

v.

Re: Dkt. No. 2
ERIC ARNOLD,
Respondent.

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United States District Court
Northern District of California

Case No. 16-cv-03034-PJH

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner challenges a November 8, 1996, conviction

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from the San Francisco County Superior Court. Petitioner argues that he received an

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unauthorized sentence in excess of the trial court’s jurisdiction because of state

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Propositions that were passed in 1990 before his trial and sentence. Court records

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indicate that petitioner already filed a habeas petition in this court challenging the same

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conviction. See Bell v. Lamarque, Case No. 99-cv-3562-PJH. That case was denied on

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June 20, 2003, and an appeal was later denied. The court ordered petitioner to show

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cause why this case should not dismissed as successive. Petitioner has filed a

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response.

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“A claim presented in a second or successive habeas corpus application under

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section 2254 that was not presented in a prior application shall be dismissed . . .” 28

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U.S.C. § 2244(b)(2). This is the case unless,

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(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 disc
covered pre
eviously th
hrough the exercise of due
e
diligence; and
a
(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.

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28 U.S.C. § 2244(b)(2).
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“Before a second or success
e
sive applica
ation permit
tted by this section is f
filed in the
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dis
strict court, the applica shall mo in the a
ant
ove
appropriate court of ap
ppeals for an order
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authorizing th district co to cons
he
ourt
sider the ap
pplication.” 28 U.S.C. § 2244(b)(
(3)(A).
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Petition has sub
ner
bmitted a re
esponse bu has failed to demons
ut
d
strate the h received
he
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authorization to file a new petition. The case iis therefore dismissed If petition obtains
w
e
d.
ner
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permission fro the Nint Circuit he may refile this case
om
th
e
e
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United States District Court
Northern District of California

CONCLU
USION
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1.

Petitioner’s motion for appoint of counsel (D
s
r
f
Docket No. 2) is DENIED.

2.

The case is DISMISS
s
SED and a c
certificate o appealab
of
bility is DEN
NIED.

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IT IS SO ORDER
S
RED.
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Da
ated: Augus 1, 2016
st
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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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\\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-dis.do
ocx

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2

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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JO
OSEPH BEL
LL,

Case No. 1
16-cv-03034
4-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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ER ARNOL
RIC
LD,
.
Defendant.

United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.
That on August 1, 2016, I SERV
n
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VED a true and correct c
copy(ies) of the attached by placing
f
d,
g
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Jos
seph Bell
K-3
30059
P.O Box 4000
O.
0
Va
acaville, CA 95696

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ated: August 1, 2016
Da
Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
D
Doug Merry, Deputy Cler to the
rk
H
Honorable PH
HYLLIS J. H
HAMILTON
N
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