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Eslick v. Kirkegard

United States District Court, D. Montana, Missoula Division

May 8, 2015

DAVID MICHAEL ESLICK, Petitioner,
v.
LEROY KIRKEGARD; ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY

DANA L. CHRISTENSEN, Chief District Judge.

This case comes before the Court on David Michael Eslick's letter to the Clerk of Court and attached documents requesting a "writ of error." Eslick, a state prisoner proceeding prose, contends that the Judge who presided over proceedings on his original conviction should have recused himself from revocation proceedings against Eslick.

Although some of the documents appear to be intended for other courts, Eslick mailed all of his documents to this Court. As this Court is not a mail forwarding service, it will not forward the documents on Eslick's behalf.

Regardless, all ofEslick's documents lack merit. His claim has repeatedly been rejected by this Court as frivolous. Moreover, the only jurisdictional basis on which the Court could entertain any challenge by Eslick to the validity of his custody under a state judgment is 28 U.S.C. § 2254. Mardesich v. Cate, 668 F.3d 1164, 1174 (9th Cir. 2012). Eslick has already litigated to completion a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging the revocation of his suspended sentence for burglary. See Pet. (Doc. 1) at 2-4. Therefore, unless and until Eslick obtains leave from the Ninth Circuit Court of Appeals to file a successive habeas petition, see 28 U.S.C. § 2244(b), this Court has no jurisdiction to hear a petition from him, Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam).

A certificate of appealability is denied because there is no doubt this Court lacks jurisdiction. Transfer to the Court of Appeals is not in the interest of justice, see 28 U.S.C. § 1631, because Eslick's claim is frivolous.

Accordingly, IT IS HEREBY ORDERED as follows:

1. Eslick's documents seeking a "writ of error" (Docs. 16, 16-1) are DISMISSED for lack of jurisdiction as in substance an unauthorized second or successive petition under 28 U.S.C. § 2254.

2. The Clerk of Court shall enter, by separate document, a judgment of dismissal.

3. A certificate of appealability is DENIED.

4. This action is CLOSED. Other than a notice of appeal, no action will be taken on further submissions under this cause number.


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