Opinion
No. C 11-2701 CRB (PR)
11-04-2011
PETER J. HONESTO, D-55459, Plaintiff(s), v. JEREMY FOGEL, Judge, et al., Defendant(s).
ORDER OF DISMISSAL
(Docket # 2)
On January 17, 2006, Peter J. Honesto filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a 1987 second degree murder conviction from Santa Clara County Superior Court. See Honesto v. Adams, No. C 06-0308 JF (N.D. Cal. filed Jan. 17, 2006).
On March 7, 2011, after an extended stay of the federal proceedings in order to allow Honesto to exhaust his state court remedies, the court (Fogel, J.) granted respondent's motion to dismiss the petition as untimely and the clerk entered judgment in favor of respondent. Honesto appealed and said appeal is still pending in the Ninth Circuit. See Honesto v. Adams, No. 11-15946 (9th Cir. filed Mar. 18, 2011).
On June 6, 2011, Honesto filed the instant pro se complaint for injunctive relief under 42 U.S.C. § 1983. In a nutshell, Honesto challenges the dismissal of his federal habeas petition under the timeliness provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and seeks an order compelling federal review of his habeas claims on the merits. Honesto also seeks leave to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915.
Honesto's complaint must be DISMISSED because this court cannot review the ruling of another district judge or review a habeas matter via a civil rights complaint. The relief Honesto seeks must be brought in an appeal of the dismissal of his habeas petition to the United States Court of Appeals for the Ninth Circuit. And because Honesto did appeal the dismissal of his habeas petition to the Ninth Circuit and said appeal is pending, this court is further precluded from entertaining the relief he seeks here. See Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997) (filing of notice of appeal divests district court of jurisdiction over aspects of case involved in appeal).
For the foregoing reasons, the complaint is DISMISSED and Honesto's request to proceed IFP (docket # 2) is DENIED. See O'Loughlin v. John Doe, 920 F.2d 614, 616 (9th Cir. 1990) (district court may deny leave to proceed IFP at outset if action is frivolous or without merit).
The clerk is instructed to enter judgment in accordance with this order and close the file.
SO ORDERED.
CHARLES R. BREYER
United States District Judge