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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MAURICE W. HOOKER,

Petitioner,

v.

ROBERT W. FOX, Warden,1

Respondent.

Case No. 17-cv-00337-DMR (PR)

ORDER DISMISSING PETITION AS 

SUCCESSIVE

Petitioner, a state prisoner, has filed a petition for writ of habeas corpus to challenge the 

restitution component of his 2008 conviction and resulting sentence in the Santa Clara County 

Superior Court for inflicting corporal injury on his spouse, Cal. Penal Code § 273.5(a), and 

inflicting corporal injury on a child, his stepdaughter, id. § 273d(a). He has also submitted an 

application for leave to proceed in forma pauperis (“IFP”). Dkt. 2.

This action has been assigned to the undersigned magistrate judge. Petitioner consented to 

magistrate judge jurisdiction in this matter. Dkt. 1 at 7.

Pursuant to 28 U.S.C. § 636(c), with written consent of all parties, a magistrate judge may 

conduct all proceedings in a case, including entry of judgment. Appeal will be directly to the 

United States Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 636(c)(3).

This is not Petitioner’s first challenge to his aforementioned conviction and sentence.

2

 He 

also challenged the same conviction and sentence in a habeas petition filed in Case No. C 11-1652 

 

1 Robert W. Fox, the current warden of the prison where Petitioner is incarcerated, has 

been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

2

Petitioner has also filed a petition for a writ of mandate/prohibition pursuant to 28 U.S.C. 

§ 1651 and California Code of Civil Procedure § 1085 et seq. See Case No. C 14-04287 DMR 

(PR). However, the court denied his petition for a writ of mandate/prohibition with prejudice for 

lack of subject matter jurisdiction. Dkt. 6 in Case No. C 14-04287 DMR (PR). 

Case 4:17-cv-00337-DMR Document 3 Filed 01/27/17 Page 1 of 4
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United States District Court

Northern District of California

SBA (PR). On July 16, 2014, the Honorable Saundra Brown Armstrong denied the first petition 

on the merits. See Dkt. 13 in Case No. C 11-1652 SBA (PR).

On August 7, 2014, Petitioner again challenged the same conviction and sentence in 

another habeas petition filed in Case No. 14-03598 DMR (PR). On November 12, 2014, the court 

dismissed that action as successive pursuant to 28 U.S.C. § 2244(b). Dkt. 10 in Case No. 14-

03598 DMR (PR). 

More recently, on August 5, 2016, Petitioner filed a document captioned “Petition For A 

Writ of Habeas Corpus” in Case No. C 16-04432 DMR (PR). The court determined that the

petition did not challenge either the fact of Petitioner’s conviction or the length of his sentence, 

but instead it pertained to the conditions of his confinement. See Dkt. 3 at 1 in Case No. C 16-

04432 DMR (PR). The court dismissed that action without prejudice to refiling as a civil rights 

action under 42 U.S.C. § 1983.

3

 Id. at 2. 

The instant habeas petition, which was filed on January 23, 2017, will be treated as a 

second or successive petition. Dkt. 1.

A second or successive petition containing new claims may not be filed in the district court 

unless 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). Here, the instant petition 

challenges the same conviction and sentence as his previous petitions, including the petition

denied on the merits by Judge Armstrong. See Dkt. 13 in Case No. C 11-1652 SBA (PR). The 

instant petition raises new claims challenging the restitution component of his sentence, but 

Petitioner has not presented an order from the Ninth Circuit Court of Appeals authorizing the court

to consider these claims. Therefore, the court is not authorized to consider the instant petition. 

Accordingly, the instant petition is DISMISSED in its entirety.

If Petitioner wants to attempt to obtain the necessary order from the Ninth Circuit, he 

should very clearly mark the first page of his document as a “MOTION FOR ORDER 

AUTHORIZING DISTRICT COURT TO CONSIDER SECOND OR SUCCESSIVE PETITION 

 

3 On December 7, 2016, Petitioner filed a civil rights action, which is still pending in this 

court. See Case No. C 16-07019 DMR (PR).

Case 4:17-cv-00337-DMR Document 3 Filed 01/27/17 Page 2 of 4
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United States District Court

Northern District of California

PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)” rather than labeling it as a habeas petition because 

the Ninth Circuit clerk’s office is apt to simply forward to this court any document labeled as a 

habeas petition. He also should mail the motion to the Ninth Circuit at (95 Seventh Street, San 

Francisco, California 94103), rather than to this court. In his motion to the Ninth Circuit, he 

should explain how he meets the requirements of 28 U.S.C. § 2244(b).

CONCLUSION

For the forgoing reasons, the instant petition for a writ of habeas corpus is DISMISSED as 

a second and successive petition. 

Based solely on Petitioner’s lack of financial resources, his application to proceed IFP is 

GRANTED. Dkt. 2.

The Clerk of the Court shall close the file.

This Order terminates Docket No. 2.

IT IS SO ORDERED.

Dated: January 27, 2017

DONNA M. RYU

United States Magistrate Judge

Case 4:17-cv-00337-DMR Document 3 Filed 01/27/17 Page 3 of 4
United States District Court 

Northern District of Californi

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Case 4:17-cv-00337-DMR Document 3 Filed 01/27/17 Page 4 of 4