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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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA WILLIAM KENNERSON, Petitioner, 11 12 13 CASE NO. 17cv1847-LAB (BLM) ORDER OF DISMISSAL vs. DEAN BORDERS, et al., Respondents. 14 15 “An individual seeking to file a ‘second or successive’ application must move in the 16 appropriate court of appeals for an order directing the district court to consider his 17 application. § 2244(b)(3)(A).” Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Judge 18 Curiel previously denied William Kennerson’s habeas petition. Kennerson admits he hasn’t 19 obtained Ninth Circuit permission to file a second habeas petition but argues he didn’t need 20 to under Stewart v. Martinez-Villareal. But Stewart held that a prisoner didn’t need to obtain 21 permission to file a second petition where the first was dismissed for failure to exhaust state 22 remedies. Id. at 644. Here, Judge Curiel dismissed the first petition on the merits. Therefore, 23 Kennerson’s second petition is DISMISSED without prejudice. The clerk will attach a Ninth 24 Circuit Application for Leave to File a Second Petition. Kennerson’s motions to proceed IFP 25 and for a TRO are DENIED as moot. 26 27 28 IT IS SO ORDERED. Dated: October 2, 2017 HONORABLE LARRY ALAN BURNS United States District Judge -1-

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