Torres v. Swarthout

Filing 13

Order by Judge Lucy Koh Granting 9 Motion to Dismiss. The Clerk shall close the file. (lhklc2S, COURT STAFF) (Filed on 6/30/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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DANNY TORRES,
Petitioner,

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Case No. 15-CV-00369-LHK
ORDER GRANTING MOTION TO
DISMISS WITHOUT PREJUDICE

v.

Re: Dkt. No. 9
GARY SWARTHOUT,
Respondent.

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On January 27, 2015, Petitioner Danny Torres (“Petitioner”), represented by counsel, filed

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a Petition for Writ of Habeas Corpus challenging his detention at the California State Prison,

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Solano, in Vacaville, California. ECF No. 1 (“Petition”). On March 29, 2016, the Court ordered

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Respondent to show cause why the Petition should not granted. ECF No. 8.

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On May 31, 2016, Respondent filed the instant motion to dismiss, which contends that the

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Court lacks jurisdiction to hear the Petition “on the grounds that the [P]etition is a second or

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successive [habeas corpus] petition.” ECF No. 9 at 1; see 28 U.S.C. § 2244(b)(3)(A) (“Before a

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second or successive [habeas corpus] application . . . is filed in the district court, the applicant

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shall move in the appropriate court of appeals for an order authorizing the district court to consider

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the application.”); Burton v. Stewart, 549 U.S. 147, 157 (2007) (per curiam) (“Burton neither

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Case No. 15-CV-00369-LHK
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE

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sought nor received authorization from the Court of Appeals before filing his 2002 petition, a

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‘second or successive’ petition challenging his custody, and so the District Court was without

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jurisdiction to entertain it.”).

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On June 15, 2016, Petitioner responded to Respondent’s motion to dismiss. ECF No. 12.

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In Petitioner’s response, Petitioner agrees with Respondent that his Petition is a second or

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successive petition and that “he must [therefore] seek permission from the United States Ninth

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Circuit Court of Appeals to file a successive petition before proceeding in this matter.” Id. at 1.

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Accordingly, Petitioner requests that this action be dismissed without prejudice. Respondent has

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not filed a reply to Petitioner’s response, and the time for filing a reply has now passed.

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In light of the parties’ positions, the Court hereby GRANTS without prejudice

United States District Court
Northern District of California

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Respondent’s motion to dismiss. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: June 30, 2016

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______________________________________
LUCY H. KOH
United States District Judge

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Case No. 15-CV-00369-LHK
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE