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