Eslick v. Kirkegard et al

Filing 17

ORDER dismissing 16 documents seeking a "writ of error." A certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 5/8/2015. Mailed to Eslick. (TAG, )

FILED
MAY 0 8 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
DAVID MICHAEL ESLICK,

Cler~. l!-S. District Court
D1stnct Of Montana
Missoula

Cause No. CV 12-107-M-DLC

Petitioner,
vs.

ORDER DISMISSING PETITION
AND DENYING CERTIFICATE OF
APPEALABILITY

LEROY KIRKEGARD; ATTORNEY
GENERAL OF THE STATE OF
MONTANA,
Respondents.

This case comes before the Court on David Michael Eslick's letter to the
Clerk of Court and attached documents requesting a "writ of error." Eslick, a state
prisoner proceeding prose, contends that the Judge who presided over proceedings
on his original conviction should have recused himself from revocation
proceedings against Eslick.
Although some of the documents appear to be intended for other courts,
Eslick mailed all of his documents to this Court. As this Court is not a mail
forwarding service, it will not forward the documents on Eslick's behalf.
Regardless, all ofEslick's documents lack merit. His claim has repeatedly
been rejected by this Court as frivolous. Moreover, the only jurisdictional basis on
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which the Court could entertain any challenge by Eslick to the validity of his
custody under a state judgment is 28 U.S.C. § 2254. Mardesich v. Cate, 668 F .3d
1164, 1174 (9th Cir. 2012). Eslick has already litigated to completion a petition for
writ of habeas corpus under 28 U.S.C. § 2254 challenging the revocation of his
suspended sentence for burglary. See Pet. (Doc. 1) at 2-4. Therefore, unless and
until Eslick obtains leave from the Ninth Circuit Court of Appeals to file a
successive habeas petition, see 28 U.S.C. § 2244(b ), this Court has no jurisdiction
to hear a petition from him, Burton v. Stewart, 549 U.S. 147, 149 (2007) (per
curiam).
A certificate of appealability is denied because there is no doubt this Court
lacks jurisdiction. Transfer to the Court of Appeals is not in the interest of justice,

see 28 U.S.C. § 1631, because Eslick's claim is frivolous.

Accordingly, IT IS HEREBY ORDERED as follows:
1. Eslick's documents seeking a "writ of error" (Docs. 16, 16-1) are
DISMISSED for lack of jurisdiction as in substance an unauthorized second or
successive petition under 28 U.S.C. § 2254.
2. The Clerk of Court shall enter, by separate document, a judgment of
dismissal.
3. A certificate of appealability is DENIED.
4. This action is CLOSED. Other than a notice of appeal, no action will be
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taken on further submissions under this cause number.
DATED this

B~day of May, 2015.

Dana L. Christensen, Chief Judge
United States District Court

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