Blacher v. State of California
- Charles Breyer
- 3:20-cv-07119
- U.S. District Court · Northern District of California
- 2
In Blacher v. State of California, Judge Breyer dismissed a successive habeas petition without prejudice because Blacher lacked Ninth Circuit authorization, while granting a fee waiver.
Marlon J. Blacher; the petition was dismissed without prejudice because he had not obtained the Ninth Circuit's required authorization to file a second or successive petition.
What happened
Marlon J. Blacher, a state prisoner challenging his 2009 conviction and sentence, filed a second petition asking the federal court to review his case, including a restitution order.
The court said Blacher first needed permission from the Ninth Circuit to file a second petition. Because he had not obtained that permission, the court could not consider the petition. The court also said any claim about prison officials withdrawing money for restitution had to be brought in a civil-rights lawsuit under 42 U.S.C. § 1983, not through this type of petition.
Judge Charles R. Breyer dismissed the petition without prejudice, meaning it could be filed again if Blacher obtained the required permission. Judge Breyer granted Blacher permission to proceed without paying the filing fee, terminated pending motions as moot, and closed the case.
The detailed version
- Blacher v. State of California · No. 3:20-cv-07119
- Charles Breyer
- Dec. 16, 2020
Background
Marlon J. Blacher, a state prisoner, filed a second or successive petition under 28 U.S.C. § 2254 challenging aspects of his 2009 conviction and sentence, including a restitution order. The court noted that Blacher's first petition challenging that conviction and sentence had been denied on the merits in 2015.
Authorization requirement
Under 28 U.S.C. § 2244(b)(3)(A), a person generally may not file a second or successive petition in the district court unless the United States Court of Appeals for the Ninth Circuit first authorizes the district court to consider it. The court found that Blacher had not obtained that authorization and therefore lacked power to consider the petition.
Restitution-related claim
The court stated that, to the extent Blacher claimed officials at Richard J. Donovan Correctional Facility were unlawfully withdrawing money from his prison trust account under an unlawful restitution order, he had to bring that claim, if at all, in a civil-rights action under 42 U.S.C. § 1983. The court stated that a restitution order could not be challenged through federal review of a state prisoner's petition under § 2254.
Disposition
The court dismissed the petition without prejudice to refiling if Blacher obtained the necessary order from the Ninth Circuit. It granted him permission to proceed without paying the filing fee based on an affidavit of poverty filed in a related action, terminated all pending motions as moot, and closed the case. The order was signed by United States District Judge Charles R. Breyer.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.