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Cruz v. Knowles

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


September 8, 2009

ALBERT CRUZ, PETITIONER,
v.
KNOWLES, WARDEN, ET AL., RESPONDENTS.

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner has not responded to an order directing him to show cause why this action should not be dismissed as second or successive.*fn1 For the reasons explained below, the court finds that this action must be dismissed.

On June 9, 2009, the court found that the application for a writ of habeas corpus was second or successive, and that petitioner had not demonstrated that he had obtained leave from the appellate court to proceed thereon. See 28 U.S.C. § 2244(b)(3), (4). The court compared the petition in this case to the petition in Cruz v. Veal, No. Civ. S-06-2463 MCE CMK. This comparison justified a finding that it appeared petitioner challenges the same judgment in both actions. Furthermore, although he did not in his original petition present the grounds he presents in this case, he could have presented them. Accordingly, the court gave petitioner 20 days to demonstrate that he had obtained leave from the appellate court to proceed on the instant petition. Petitioner has not responded to that order. Therefore, the court finds that the instant petition is second or successive in violation of 28 U.S.C. § 2244(b)(3)(A) and must be dismissed.

Accordingly, it is hereby RECOMMENDED that this action be dismissed on the ground that the petition is second or successive and petitioner has not demonstrated that the Ninth Circuit has granted him leave to file it in this court.

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 20 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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