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Steven L. Schmidt v. M. Evans

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


January 4, 2012

STEVEN L. SCHMIDT,
PETITIONER,
v.
M. EVANS, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISREGARDING PETITIONER'S MOTION FOR RELIEF FROM THE JUDGMENT (DOC. 19)

Petitioner is a state prisoner who proceeded pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was dismissed as successive on June 13, 2011. Judgment was entered and served on Petitioner by mail on the same date. Pursuant to 28 U.S.C. § 636(c)(1), the parties had consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment. No notice of appeal was filed.

On December 23, 2011, Petitioner filed a motion for relief from the judgment pursuant to Fed. R. Civ. P. 60 on the ground that the judgment of conviction and sentence pursuant to which Petitioner is detained was void, and that Petitioner's petition was not successive.

The petition in this proceeding was dismissed upon Respondent's motion because it was successive, and Petitioner had not obtained leave from the Ninth Circuit Court of Appeals to file a successive petition. This Court must dismiss any claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application unless the Court of Appeals has given Petitioner leave to file the petition. 28 U.S.C. § 2244(b)(1). This limitation has been characterized as jurisdictional. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).

Because this Court lacks subject matter jurisdiction over the petition, Petitioner's motion for relief from the judgment is DISREGARDED.

Petitioner is INFORMED that no further filings in this action will be entertained.

IT IS SO ORDERED.

20120104

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