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Mills v. Clark

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 16, 2009

FABIAN CHEVALIER MILLS, PETITIONER,
v.
KEN CLARK, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On October 8, 2008, the magistrate judge filed findings and recommendations herein which were served on petitioner and which contained notice to petitioner that any objections to the findings and recommendations were to be filed within twenty days. Petitioner has filed objections to the findings and recommendations.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

In adopting the Magistrate's findings, the court adds the following note of clarification. Petitioner argues that his present petition presents new evidence satisfying 28 U.S.C. § 2244(b)(2)(B). The district court cannot make this determination. "Before filing a successive petition in the district court, 28 U.S.C. § 2244(b)(3) requires [a petitioner] to make a 'prima facie showing' to [the Ninth Circuit] that his petition would satisfy section 2244(b)(2)." Woratzeck v. Stewart, 118 F.3d 648, 650 (9th Cir. 1997).

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed October 8, 2008, are adopted in full; and

2. This action is dismissed pursuant to 28 U.S.C. § 2244(b) as second or successive.

20090316

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