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Elmore v. Knowles

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


March 16, 2010

TONIE ELMORE, PETITIONER,
v.
MIKE KNOWLES, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Petitioner's sole claim alleges that the sentencing court improperly imposed restitution stemming from a 1998 conviction. However, court records indicate that petitioner is currently pursuing habeas relief related to this conviction in another case in this court, Elmore v. People of the State of California, No. 2:05-cv-1641 GEB GGH.*fn1 In that case, petitioner's petition was dismissed as untimely, though the case is currently pending appeal before the Ninth Circuit. Therefore the instant petition should be dismissed.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's application to proceed in forma pauperis is granted;

2. The Clerk of the Court assign a District Judge to this case.

IT IS HEREBY RECOMMENDED that this petition 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-one 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 response to the objections shall be filed and served within fourteen 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).


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