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Wilson v. People

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


March 10, 2010

KELLY WILSON PETITIONER,
v.
THE PEOPLE OF THE STATE OF CALIFORNIA, RESPONDENT.

FINDINGS AND RECOMMENDATIONS

Petitioner requests permission to file a successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before filing a successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton v. Stewart, 549 U.S. 147 (2007).

Petitioner has filed his request to file a successive petition in the wrong court, and is instructed to file his request with the Ninth Circuit Court of Appeals. This action must therefore be dismissed for lack of jurisdiction.

Accordingly, it is hereby RECOMMENDED that this action be dismissed for lack of jurisdiction.

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 fourteen 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).

20100310

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