Swain v. Beard et al, No. 3:2013cv01849 - Document 6 (S.D. Cal. 2013)
Court Description: ORDER (1) Granting (Doc. 5 ) Motion To Withdraw Notice Of Appeal; (2) Dismissing First Amended Petition Without Prejudice And Without Leave To Amend; And, (3) Declining To Issue A Certificate Of Appealability: The Clerk of Court is directed to enter final judgment accordingly. If Petitioner wishes to appeal the dismissal of this action he must timely file a new Notice of Appeal. Signed by Judge William Q. Hayes on 10/22/2013. (All non-registered users served via U.S. Mail Service - mailed to docket address of: San Quentin State Prison, San Quentin, CA 94974.) (mdc)
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Swain v. Beard et al Doc. 6 13C:T22 2 Oct 22 2013 3 , "".:' , ,. 4 s/ Mike Cruz s/ mikec j ,. I,.' O[PUTV 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 THEODORE SWAIN, Civil No. 12 Petitioner, ORDER: 13 (1) GRANTING MOTION TO WITHDRAW NOTICE OF APPEAL; v. 14 15 16 13cv1849-WQH (RBB) (2) DISMISSING FIRST AMENDED PETITION WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND; and, JAMES BEARD, Secretary, et aI., 17 Respondents. 18 (3) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 19 20 On August 8, 2013, Petitioner, a state prisoner proceeding pro se, filed a Petition for a 21 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in fom1a 22 pauperis. On August 22,2013, the Court granted Petitioner's in forma pauperis application and 23 dismissed the Petition because Petitioner challenged only the imposition ofa restitution fine, and 24 had therefore failed to invoke this Court's habeas jurisdiction. Petitioner was instructed that in 25 order to proceed with this action he was required to file a First Amended Petition on or before 26 October 11,2013. 27 On September 10,2013, Petitioner filed a Notice of Appeal of this Court's August 8, 28 2013, Order. On October 5,20 l3 , Petitioner constructively filed a First Amended Petition and l:'.E\cry ,,"c _EFU,F.-I'RI ISEIWQ li 10 1!! 1) -1- 13cvl849 Dockets.Justia.com 1 a Motion to withdraw the Notice of Appeal. The Court GRANTS Petitioner's Motion to 2 withdraw his notice of appeal, which was in any case ineffective because it was premature as a 3 final judgement had not been entered. See Serine v. Peterson, 989 F 3d 371, 372-73 (9th Cir. 4 1993) (holding that premature notice of appeal was not cured by subsequent entry of final 5 judgment). The First Amended Petition incorporates the original Petition and is not complete in and 6 7 of itself without reference to the superseded pleading, and is therefore subject to dismissaL See 8 S. D. CAL. CIvLR 15.1. Furthermore, rather than curing the defects of pleading identified in the 9 Court's previous Order of dismissal, the First Amended Petition merely contains argument that 10 this Court was incorrect in dismissing the original Petition for lack ofjurisdiction on the basis 11 that the original Petition challenged only a restitution hearing. (FAP at 2-5.) This Court is 12 bound by Ninth Circuit authority, which was cited in the Court's previous Order of dismissal, 13 and which provides that the Court lacks jurisdiction over this action. See Bailey v. Hill, 599 14 F3d 976,982 (9th Cir. 2010) ("§ 2254 does not confer jurisdiction over a state prisoner's in15 custody challenge to a restitution order imposed as part of a criminal sentence.") 16 In the instant case, Petitioner is challenging a May 14,2013, restitution hearing arising 17 from his March 4, 2008, conviction in San Diego County Superior Court case number 18 SCD 199072. Petitioner is currently challenging that same conviction in a habeas action pending 19 in this Court in Civil Case No. 1 Icv1086-H (PCL). But for the fact that the Court lacks 20 jurisdiction over the instant Petition, and but for the fact that it would appear to be futile for 21 Petitioner to seek leave in Civil Case No. 11cvl086-H (PCL) to present the restitution claim 22 presented here, the Court would have instructed the Clerk of Court to file the original Petition 23 in this case as a motion to amend the petition in Civil Case No. 11 cv 1086-H (PCL). See Woods 24 v. Carey, 525 F.3d 886 (9th Cir. 2008) (stating that a new pro se petition challenging the same 25 conviction as a pending petition, which is filed before the first petition is adjudicated, should be 26 liberally construed as an attempt to amend the pending petition rather than summarily dismissed 27 as second or successive). 28 III -2- l3ev! 849 Because it is now clear that Petitioner does not wish to cure the defect of pleading 2 identified in the Court's previous Order of dismissal, but seeks to challenge binding Ninth 3 Circuit authority which provides that this Court lacks jurisdiction to entertain a challenge to his 4 restitution hearing, and because Petitioner currently has pending in this Court a habeas action 5 challenging the conviction underlying the restitution order he challenges in this case, the Court 6 DISMISSES this action without further leave to amend. The dismissal is without prejudice to 7 Petitioner attempting to seek leave to present his restituti on claim in Civil Case No. 11 cv 1086-H 8 (PCL), although such an attempt appears futile. CONCLUSION AND ORDER 9 10 The Court GRANTS Petitioner's Motion to Withdraw his premature Notice of Appeal, 11 and DISMISSES this action without prejudice and without further leave to amend. The Court 12 DECLINES to issue a Certificate of Appealability and DIRECTS the Clerk of Court to enter 13 final judgment accordingly. If Petitioner wishes to appeal the dismissal of this action he must 14 timely file a new Notice of Appeal. 15 16 IT IS SO ORDERED. DATED: /0/22;#.1 17 18 Copies to: ALL PARTIES 19 20 21 22 23 24 25 26 27 28 -3- 13cv1849
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