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Maurice Cook v. Warden

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


February 17, 2011

MAURICE COOK, PETITIONER,
v.
WARDEN, RESPONDENT.

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

ORDER

Petitioner, a state prisoner proceeding without counsel, has filed an application 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).

Petitioner has consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). The court's records reveal that petitioner has previously filed an application for a writ of habeas corpus attacking the 2003 conviction and forty-year sentence challenged in this case. (Case No. 2:06-cv-2110 MMS.)*fn1 The previous application was filed on September 22, 2006, and was denied on the merits on April 7, 2009. (Id.) 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.

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

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

2. This action is dismissed without prejudice.

cook0019.suc


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