Harris v. Virga et al
Filing
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ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 8/1/12. (lrc, COURT STAFF) (Filed on 8/3/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARVIN HARRIS,
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No. C 12-03775 SBA (PR)
Petitioner,
ORDER DISMISSING SUCCESSIVE
PETITION WITHOUT PREJUDICE
v.
TIM VIRGA, Warden,
Respondent.
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Petitioner, a state prisoner, filed this pro se petition for writ of habeas corpus pursuant to 28
United States District Court
For the Northern District of California
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U.S.C. § 2254 and an application for leave to proceed in forma pauperis (IFP). He has also filed a
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motion for appointment of counsel, a motion to amend or correct his petition for a writ of habeas
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corpus, and a July 18, 2012 filing that was directed at the Ninth Circuit Court of Appeals. (Docket
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nos. 3, 4, 5.)
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As explained below, Petitioner has filed a previous petition for a writ of habeas corpus with
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this Court, challenging the same conviction and sentence, which has been considered on the merits.
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See Harris v. Gomez, Case Nos. C 92-2180 JPV and C 92-2181 JPV (consolidated cases).
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DISCUSSION
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Petitioner was convicted by a Contra Costa County jury of murder and sentenced to life
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without parole on November 3, 1988. He asserts numerous claims in the instant petition, primarily
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concerning the application of California's felony-murder rule.
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It appears that Petitioner previously sought federal habeas review regarding this conviction
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in this district claiming, inter alia, double jeopardy, due process, speedy trial and Eighth Amendment
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violations. His petition was considered on the merits and dismissed with prejudice in 1992. See id.
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Petitioner has filed previous habeas petitions, which have also been dismissed without
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prejudice as successive to Case Nos. C 92-2180 JPV and C 92-2181 JPV. See, e.g., Harris v. Virga,
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Case No. C 11-04304 SBA (PR); Harris v. Galaza, Case No. C 00-1406 SBA (PR).
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A claim presented in a second or successive petition under 28 U.S.C. § 2254 that was
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presented in a prior petition must be dismissed. See 28 U.S.C. § 2244(b)(1). A claim presented in a
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second or successive petition under 28 U.S.C. § 2254 that was not presented in a prior petition must
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be dismissed unless: (1) the claim relies on a new rule of constitutional law, made retroactive to
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cases on collateral review by the Supreme Court; or (2) the facts underlying the claims (a) could not
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have been discovered previously through the exercise of due diligence and (b) if proven and viewed
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in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence
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that, but for constitutional error, no reasonable fact finder would have found the petitioner guilty of
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the underlying offense. 28 U.S.C. § 2244(b)(2). Before a second or successive petition may be filed
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in the district court, however, the petitioner must first obtain an order from the United States Court
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of Appeals authorizing the district court to consider the petition. Id. § 2244(b)(3)(A).
United States District Court
For the Northern District of California
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The Court notes that Petitioner's July 18, 2012 filing is a courtesy copy of a motion filed in
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the Ninth Circuit because it is captioned, "In the United States Court of Appeals For the Ninth
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Circuit." (Pet'r July 18, 2012 Filing at 1.) While the majority of this filing is difficult to understand,
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the first line of reads as follows: "A motion for permission in the court of appeals for an order
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authorizing the district court to consider a second or successive application." (Id. at 1.) The Court
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presumes that Petitioner is asserting that he filed this motion to obtain an order from the Ninth
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Circuit authorizing this Court to consider the instant petition. However, nothing in the record shows
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that the Ninth Circuit has issued a notice or an order indicating that it has received or granted
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Petitioner's motion.
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Because Petitioner has not obtained permission from the Ninth Circuit to file a second or
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successive petition, the Court cannot order his case to proceed. Accordingly, this petition is
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DISMISSED without prejudice to filing a new habeas action if Petitioner obtains the necessary
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order.
CONCLUSION
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For the foregoing reasons, the petition is DISMISSED pursuant to 28 U.S.C. § 2244(b). The
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Court has rendered its final decision on this matter; therefore, this Order TERMINATES Petitioner's
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case.
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Based solely on Petitioner's lack of financial resources, his application to proceed IFP
(docket no. 2) is GRANTED.
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The Clerk of the Court shall terminate all other pending motions as moot and close the file.
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This Order terminates Docket nos. 2, 3, and 4.
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IT IS SO ORDERED.
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DATED:
8/1/12
SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE
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United States District Court
For the Northern District of California
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G:\PRO-SE\SBA\HC.12\Harris3775.grantIFPdisSUCC.wpd
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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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Case Number: CV12-03775 SBA
MARVIN HARRIS,
CERTIFICATE OF SERVICE
Plaintiff,
v.
TIM VIRGA WARDEN et al,
Defendant.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court,
Northern District of California.
That on August 3, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located
in the Clerk's office.
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Marvin Harris D-99649
New Folsom State Prison
P.O. Box 290066
Represa, CA 95671
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Dated: August 3, 2012
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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk
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G:\PRO-SE\SBA\HC.12\Harris3775.grantIFPdisSUCC.wpd
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