Hooker v. Spearmen

Filing 3

ORDER DISMISSING PETITION AND GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS. Signed by Magistrate Judge Donna M. Ryu on 1/27/17. (ig, COURT STAFF) (Filed on 1/27/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MAURICE W. HOOKER,
Petitioner,

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v.

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United States District Court
Northern District of California

ORDER DISMISSING PETITION AS
SUCCESSIVE

ROBERT W. FOX, Warden,1
Respondent.

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Case No. 17-cv-00337-DMR (PR)

Petitioner, a state prisoner, has filed a petition for writ of habeas corpus to challenge the

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restitution component of his 2008 conviction and resulting sentence in the Santa Clara County

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Superior Court for inflicting corporal injury on his spouse, Cal. Penal Code § 273.5(a), and

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inflicting corporal injury on a child, his stepdaughter, id. § 273d(a). He has also submitted an

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application for leave to proceed in forma pauperis (“IFP”). Dkt. 2.

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This action has been assigned to the undersigned magistrate judge. Petitioner consented to
magistrate judge jurisdiction in this matter. Dkt. 1 at 7.
Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may

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conduct all proceedings in a case, including entry of judgment. Appeal will be directly to the

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United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3).

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This is not Petitioner’s first challenge to his aforementioned conviction and sentence.2 He

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also challenged the same conviction and sentence in a habeas petition filed in Case No. C 11-1652

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Robert W. Fox, the current warden of the prison where Petitioner is incarcerated, has
been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
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Petitioner has also filed a petition for a writ of mandate/prohibition pursuant to 28 U.S.C.
§ 1651 and California Code of Civil Procedure § 1085 et seq. See Case No. C 14-04287 DMR
(PR). However, the court denied his petition for a writ of mandate/prohibition with prejudice for
lack of subject matter jurisdiction. Dkt. 6 in Case No. C 14-04287 DMR (PR).

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SBA (PR). On July 16, 2014, the Honorable Saundra Brown Armstrong denied the first petition

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on the merits. See Dkt. 13 in Case No. C 11-1652 SBA (PR).

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On August 7, 2014, Petitioner again challenged the same conviction and sentence in

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another habeas petition filed in Case No. 14-03598 DMR (PR). On November 12, 2014, the court

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dismissed that action as successive pursuant to 28 U.S.C. § 2244(b). Dkt. 10 in Case No. 14-

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03598 DMR (PR).

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More recently, on August 5, 2016, Petitioner filed a document captioned “Petition For A
Writ of Habeas Corpus” in Case No. C 16-04432 DMR (PR). The court determined that the

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petition did not challenge either the fact of Petitioner’s conviction or the length of his sentence,

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but instead it pertained to the conditions of his confinement. See Dkt. 3 at 1 in Case No. C 16-

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United States District Court
Northern District of California

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04432 DMR (PR). The court dismissed that action without prejudice to refiling as a civil rights

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action under 42 U.S.C. § 1983.3 Id. at 2.

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The instant habeas petition, which was filed on January 23, 2017, will be treated as a
second or successive petition. Dkt. 1.
A second or successive petition containing new claims may not be filed in the district court

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unless Petitioner first obtains from the United States Court of Appeals an order authorizing the

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district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Here, the instant petition

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challenges the same conviction and sentence as his previous petitions, including the petition

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denied on the merits by Judge Armstrong. See Dkt. 13 in Case No. C 11-1652 SBA (PR). The

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instant petition raises new claims challenging the restitution component of his sentence, but

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Petitioner has not presented an order from the Ninth Circuit Court of Appeals authorizing the court

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to consider these claims. Therefore, the court is not authorized to consider the instant petition.

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Accordingly, the instant petition is DISMISSED in its entirety.

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If Petitioner wants to attempt to obtain the necessary order from the Ninth Circuit, he

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should very clearly mark the first page of his document as a “MOTION FOR ORDER

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AUTHORIZING DISTRICT COURT TO CONSIDER SECOND OR SUCCESSIVE PETITION

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On December 7, 2016, Petitioner filed a civil rights action, which is still pending in this
court. See Case No. C 16-07019 DMR (PR).
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PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)” rather than labeling it as a habeas petition because

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the Ninth Circuit clerk’s office is apt to simply forward to this court any document labeled as a

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habeas petition. He also should mail the motion to the Ninth Circuit at (95 Seventh Street, San

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Francisco, California 94103), rather than to this court. In his motion to the Ninth Circuit, he

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should explain how he meets the requirements of 28 U.S.C. § 2244(b).
CONCLUSION

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For the forgoing reasons, the instant petition for a writ of habeas corpus is DISMISSED as
a second and successive petition.
Based solely on Petitioner’s lack of financial resources, his application to proceed IFP is
GRANTED. Dkt. 2.

United States District Court
Northern District of California

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The Clerk of the Court shall close the file.

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This Order terminates Docket No. 2.

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IT IS SO ORDERED.

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Dated: January 27, 2017

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DONNA M. RYU
United States Magistrate Judge

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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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MAURICE W. HOOKER
M
W
R,

Case No.4:
:17-cv-00337
7-DMR

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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M.E. SPEARM
M
MEN,
.
Defendant.

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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 1/27/2017, I SERVED a true and c
n
correct copy(
(ies) of the a
attached, by p
placing said
cop
py(ies) in a postage paid envelope ad
p
d
ddressed to t person(s) hereinafter listed, by d
the
)
r
depositing
said envelope in the U.S. Mail, or by placing said c
i
M
copy(ies) int an inter-office deliver receptacle
to
ry
e
cated in the Clerk's office
C
e.
loc

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Maurice W. Hooker ID: V-17290
Californ Medical Facility
nia
P.O. Bo 2500
ox
Vacavil CA 9569
lle,
96-2500

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ated: 1/27/20
017
Da
Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
Iv Lerma Ga
vy
arcia, Deputy Clerk to th
y
he
H
Honorable DO
ONNA M. R
RYU