Opinion
No. C 11-01685 CW (PR) Docket no. 6 Docket no. 8
10-07-2011
KUN S. PENG, Petitioner, v. JAMES TILTON, Director of CDCR, BEN CURRY, Warden, Respondents.
ORDER DISMISSING PETITION AS
SECOND OR SUCCESSIVE PETITION;
GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS
Petitioner, a state prisoner, filed the present pro se petition for a writ of error coram nobis, challenging the validity of his 1992 conviction for second degree murder, obtained by way of a guilty plea entered in the Superior Court of Santa Clara County.
The record shows that Petitioner filed a previous petition for a writ of habeas corpus with this Court, challenging the same 1992 conviction and sentence. See Peng v. Tilton, Case No. C 07-4797 MMC (PR). The Court denied the previous petition on the merits.
As noted, Petitioner has titled the instant petition as one seeking a writ of error coram nobis. The writ of error coram nobis affords a remedy to attack a conviction when the petitioner has served his sentence and is no longer in custody. See Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994). Here, Petitioner remains in custody at California State Prison - Solano, where he is serving a sentence of fifteen years to life in state prison for his 1992 conviction. Accordingly, the writ of error coram nobis is unavailable to him.
Additionally, Petitioner cannot challenge his conviction by way of a petition for a writ of habeas corpus under 28 U.S.C. § 2254, because the present petition is a second or successive petition attacking the same 1992 conviction and sentence as Petitioner's prior federal habeas petition. A second or successive petition containing previously raised or new claims may not be filed in the district court unless the petitioner first obtains from the United States Court of Appeals an order authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Petitioner here has not done so.
Accordingly, the instant petition is DISMISSED without prejudice to Petitioner's refiling the petition if he obtains the necessary order.
In light of Petitioner's lack of funds, the application to proceed in forma pauperis is GRANTED.
CONCLUSION
For the reasons stated above, the petition is DISMISSED, pursuant to 28 U.S.C. § 2244(b) and without prejudice, as a second or successive petition.
The application to proceed in forma pauperis is GRANTED.
The Clerk of the Court shall enter judgment and close the file.
This Order terminates Docket nos. 6 and 8.
IT IS SO ORDERED.
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
KUN SHAN PENG, Plaintiff,
v.
JAMES TILTON et al, Defendant.
Case Number: CV11-01685 CW
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on October 7, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
Kun S. Peng H52106
Bldg. #15 J4 Upper
Solano-CSP
2100 Peabody Road
P.O. Box 4000
Vacaville, CA 95696-4000
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk