IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 19, 2009
JERRY PROFFITT, PETITIONER,
KEN CLARK, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,*fn1 together with an application to proceed in forma pauperis.
Petitioner has previously filed at least four petitions for a writ of habeas corpus challenging his 2001 Shasta County conviction on his guilty plea to charges of molesting and performing lewd sexual acts upon a child, pursuant to Cal. Penal Code § 288.5 (continuous sexual abuse of a child under 14 years of age). Plaintiff's initial petition, CIV S-04-0966 GEB GGH P, was dismissed for a failure to exhaust state court remedies; his second petition, CIV S-06-2143 GEB GGH, was dismissed with prejudice as time-barred; the third petition, CIV S-07- 2603 MCE EFB, was dismissed (as duplicative or successive); the fourth petition, CIV S-08-1286 KJM, was also dismissed, the court having found no reason to depart from the ruling of untimeliness in CIV S-S-06-2143 GEB GGH. The instant, or fifth, petition is at a minimum successive; this court finds this petition to constitute a third successive petition challenging the same conviction. "Before a second or successive application ...is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(3)(A). Under Ninth Circuit Rule 22-3, "[i]f a second or successive petition or motion, or an application for leave to file such an application or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." The district court has discretion to either transfer that petition to the court of appeals or dismiss the petition. United States v. Winestock, 340 F.3d 200 (4th Cir. 2003)(§ 2255 case); Robinson v. Johnson, 313 F.3d 128, 139-140 (3rd Cir. 2002). In this case, however, because the undersigned does not find petitioner's claims to be even colorable, the court will recommend dismissal of this action.
In addition, the court cautions petitioner that at this point his serial filings fast approach rising to the level of an abuse of process. "Flagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants." Molski v. Evergree Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) quoting De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). Because petitioner may not proceed with this petition without pre-filing authorization from the Ninth Circuit, this court will not on this filing issue a pre-filing injunction against the instant pro se litigant but petitioner is cautioned not to continue down this path of repetitive, meritless filings.
Accordingly, IT IS ORDERED that the Clerk of the Court, pursuant to Local Rule 81-190(d), assign District Judge Burrell to this case.
IT IS RECOMMENDED that this case 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, petitioner may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is 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).