Borstad v. Hartley

Filing 7

ORDER OF DISMISSAL; GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS re 4 MOTION for Leave to File, 5 MOTION for Leave to Proceed in forma pauperis, 3 MOTION for Leave to File. Motions terminated: 5 MOTION for Leave to Proceed in forma pauperis, 3 MOTION for Leave to File, 4 MOTION for Leave to File. Signed by Judge James Ware on 1/14/2010. (ecg, COURT STAFF) (Filed on 1/15/2010)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United United States District Court

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For the Northern District of California

DEMETRIUS BORSTAD, Petitioner, vs. J. HARTLEY, Warden, Respondent.

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No. C 09-03756 JW (PR) ORDER OF DISMISSAL; GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

(Docket Nos. 3, 4 & 5)

Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's motions for leave to file supplemental pleading (Docket Nos. 3 and 4) are GRANTED. Petitioner clearly states that he previously filed a federal habeas petition in this court which was denied on the merits. (Pet. 5.) Petitioner asserts that he is "not challenging the conviction" but rather "challenging the change and application of California law as to my sentence and it's [sic] execution on constitutional grounds." (Id.) Even so, Petitioner presents a new claim not raised in his first petition challenging the lawfulness of his continued incarceration for the same underlying state conviction. Accordingly, the Court finds that the instant petition is the second filed by petitioner challenging the same conviction and sentence.
Order of Dismissal; Granting IFP P:\PRO-SE\SJ.JW\HC.09\Borstad03756_dism-succ.wpd

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A district court must dismiss claims presented in a second or successive habeas petition challenging the same conviction and sentence unless the claims presented in the previous petition were denied for failure to exhaust. See 28 U.S.C. § 2244(b)(1); Babbitt v. Woodford, 177 F.3d 744, 745-46 (9th Cir. 1999). Additionally, a district court must dismiss any new claims raised in a successive petition unless the petitioner received an order from the court of appeals authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(2). Here, the instant petition challenges the same sentence as the previous petition and petitioner has not presented an order from the Ninth Circuit Court of Appeals authorizing this Court to consider any new claims. Petitioner admits that his first federal petition was adjudicated on the merits. Accordingly, this Court must dismiss the instant petition in its entirety. The instant petition is DISMISSED as a second or successive petition pursuant to § 2244 (b)(1). Petitioner's motion for leave to proceed in forma pauperis (Docket No. 5) is GRANTED. This order terminates Docket Nos. 3, 4 and 5.

United States District Court

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For the Northern District of California

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DATED:

January 5, 2010

JAMES WARE United States District Judge

Order of Dismissal; Granting IFP P:\PRO-SE\SJ.JW\HC.09\Borstad03756_dism-succ.wpd

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

DEMETRIUS BORSTAD, Petitioners, v. J. HARTLEY, Warden, Respondent. /

Case Number: CV09-03756 JW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
1/15/2010 , I SERVED a true and correct copy(ies) of the That on 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.

Demetrius Borstad D-73472 Avenal State Prison P. O. Box 900 Avenal, CA 93204 Dated:
1/15/2010 /s/

Richard W. Wieking, Clerk By: Elizabeth Garcia, Deputy Clerk