IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 12, 2009
DWAYNE DELUNA, PETITIONER,
LARRY SMALL,*FN1 ET AL., RESPONDENTS.
FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges has 1996 Sacramento County convictions for murder and robbery. Respondents have filed a motion to dismiss in which they argue that the petition before the court is successive under 28 U.S.C. § 2244 and must be dismissed because petitioner has not received permission from the Ninth Circuit Court of Appeals to proceed as is required by 28 U.S.C. § 2244(b)(3)(A).
A review of court records indicates that petitioner challenged the convictions at issue in this action in CIV-S-00-2414 LKK JFM P. Therefore, this action is successive under 28 U.S.C. § 2244(a). Nothing before the court suggests petitioner has received permission from the Ninth Circuit to proceed with this successive petition. Therefore, the petition must be dismissed.
In light of the foregoing, the court does not reach respondents' argument that this action is time-barred.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (#8) be granted; and
2. This action be dismissed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).