Barba v. Cate et al

Filing 2

ORDER Dismissing Case. Signed by Judge Barry Ted Moskowitz on 7/21/10.(All non-registered users served via U.S. Mail Service)(vet)

-POR Barba v. Cate et al

Doc. 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Carlos Raul Barba ("Barba") has filed a Petition for a Writ of Coram Nobis pursuant to 28 U.S.C. § 1651(a). Barba did not pay the $350 filing fee, nor did he file a motion to proceed in forma pauperis. Therefore, this case is dismissed. Furthermore, although Barba styles his petition as a Petition for a Writ of Coram Nobis, Barba is attacking his state conviction for attempted murder and being an ex-felon in possession of a firearm. Barba is still in custody for this conviction. "The writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody." McKinney ex rel. Estate of McKinney v. United States, 71 F.3d 779, 781 (9th Cir. 1995). Furthermore, coram nobis relief is not available in federal court to challenge a state conviction. United States v. Monreal, 301 F.3d 1127, 1131 (9th Cir. 2002) ("writ of error coram nobis attacking [a state] conviction may only be brought in the 1 CARLOS RAUL BARBA, v. Petitioner, Case No. 10cv1483 BTM(POR) ORDER DISMISSING CASE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MATTHEW CATE, EDMUND C. BROWN, Respondents.

10cv1483 BTM(POR)

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

sentencing court.") Accordingly, Barba may not seek coram nobis relief. To the extent the Court construes Barba's Petitioner as a Petition for Writ of Habeas Corpus, Barba's Petition is successive. Barba challenged the same conviction and raised the same ground regarding erroneous jury instructions in a habeas petition filed in Case No. 99cv0638 JM(JFS). The habeas petition was denied on August 18, 2000. A claim presented in a second or successive habeas corpus application that was presented in a prior application shall be dismissed. 28 U.S.C. § 2244(b)(1). Moreover, before filing a successive petition, the petitioner must file a motion with the Ninth Circuit Court of Appeals for an order authorizing the district court to consider the petition. 28 U.S.C. § 2244 (b)(3). It does not appear that Barba has satisfied this pre-filing requirement. For all of these reasons, this case is DISMISSED. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. DATED: July 21, 2010

Honorable Barry Ted Moskowitz United States District Judge

2

10cv1483 BTM(POR)