Kennerson v. Borders et al

Filing 4

ORDER OF DISMISSAL. Kennerson's second petition is dismissed without prejudice. Kennerson's motions to proceed IFP and for a TRO are denied as moot. Signed by Judge Larry Alan Burns on 10/2/2017.(All non-registered users served via U.S. Mail Service)(Copy of Ninth Circuit Application for Leave to File a Second Petition mailed to Petitioner)(lrf)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
WILLIAM KENNERSON,
Petitioner,

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CASE NO. 17cv1847-LAB (BLM)
ORDER OF DISMISSAL

vs.
DEAN BORDERS, et al.,
Respondents.

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“An individual seeking to file a ‘second or successive’ application must move in the

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appropriate court of appeals for an order directing the district court to consider his

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application. § 2244(b)(3)(A).” Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Judge

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Curiel previously denied William Kennerson’s habeas petition. Kennerson admits he hasn’t

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obtained Ninth Circuit permission to file a second habeas petition but argues he didn’t need

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to under Stewart v. Martinez-Villareal. But Stewart held that a prisoner didn’t need to obtain

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permission to file a second petition where the first was dismissed for failure to exhaust state

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remedies. Id. at 644. Here, Judge Curiel dismissed the first petition on the merits. Therefore,

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Kennerson’s second petition is DISMISSED without prejudice. The clerk will attach a Ninth

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Circuit Application for Leave to File a Second Petition. Kennerson’s motions to proceed IFP

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and for a TRO are DENIED as moot.

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IT IS SO ORDERED.
Dated: October 2, 2017
HONORABLE LARRY ALAN BURNS
United States District Judge

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