IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 27, 2009
CECIL JEROME HATCHETT, PETITIONER,
FERNANDO GONZALEZ, RESPONDENT.
On June 29, 2009, petitioner consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner, a state prisoner proceeding pro se, has filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).
The court's records reveal that petitioner has previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in this case. The previous application was filed on February 26, 1998, and was denied on the merits on September 16, 2003. Before petitioner can proceed with the instant application he must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner's application must be dismissed without prejudice to its refiling upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit.
On July 16, 2009, petitioner also filed a document styled "Letter to the Court and Motion to the Court" in which he appears to seek reconsideration of facts at issue in 2:98-cv-0345 WBS JFM P. As noted above, petitioner must first seek leave from the Court of Appeals for the Ninth Circuit if he wishes to challenge his 1994 conviction. Thus, petitioner's July 16, 2009 motion will also be denied without prejudice.
Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's July 16, 2009 motion to proceed in forma pauperis (docket no. 6) is granted.
2. This action is dismissed without prejudice. 3. Petitioner's July 16, 2009 motion (docket No. 7) is denied without prejudice.
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