IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 13, 2013
KEITH DARNELL JOHNSON, PETITIONER,
P. BRAZELTON, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 37-year-to-life sentence to state prison for, inter alia, kidnapping and sexual battery. See Petition at 1.
Petitioner raises the following grounds: 1) judicial misconduct; 2) ineffective assistance of trial counsel;*fn1 3) cruel and punishment/insufficient evidence to support sentencing enhancements; 4) ineffective assistance of appellate counsel. Id. at 4-6.
Court records demonstrate that the claims of the instant petition challenging the same conviction were, for the most part, previously adjudicated in Case No. 2:06-cv-0554 MCE CHS P. "Before a second or successive application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(3)(A). Under Ninth Circuit Rule 22-3, "[i]f a second or successive petition or motion, or an application for leave to file such an application or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals."
The instant petition is a second or successive petition to Case No. 2:06-cv-0554 MCE CHS P because it challenges the same conviction and sentence addressed therein. Moreover, petitioner raises virtually the identical claims denied on the merits therein. To the extent he may be intending to bring different claims, before he may proceed with this action, petitioner must obtain an order from the Ninth Circuit Court of Appeals to proceed with this action. Accordingly, the court will order this action transferred to the Ninth Circuit.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to transfer this action to the Ninth Circuit Court of Appeals.