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Johnson v. Sisto

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 9, 2008

KELVIN CARVER JOHNSON, PETITIONER,
v.
D.K. SISTO, WARDEN RESPONDENT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER DENYING PETITIONER'S MOTION TO VACATE JUDGMENT [Doc. 11]

On July 28, 2008, the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, was dismissed, without prejudice, as a successive petition. (Court Doc. 9.)

Now pending before the Court is Petitioner's motion to vacate the judgment, filed October 20, 2008. (Court 11.) In his motion, Petitioner contends that the state court judgment is invalid under the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). As stated in the Court's July 28, 2008, although Apprendi predated the finality of Petitioner's conviction, Petitioner could and should have raised his Apprendi claim in his prior petition filed in this Court on February 22, 2001, Johnson v. Newland, 1:01-5255- REC-LJO (HC). Because Petitioner failed to do so, he must now seek relief from the United States Court of Appeals for the Ninth Circuit. Accordingly, Petitioner's motion to vacate the judgment is DENIED.

IT IS SO ORDERED.

20081109

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