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Jose Perez v. Unknown

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


June 30, 2011

JOSE PEREZ, PETITIONER,
v.
UNKNOWN, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a prior habeas case brought by petitioner, CIV S-07-1344 MCE GGH P, he was appointed counsel, but the petition was dismissed as barred by the statute of limitations.*fn1 Doc. 47. In the instant petition, petitioner alleges that he has new evidence that his appointed counsel in CIV S-07-1344 MCE GGH P, was ineffective. It appears that the evidence to which petitioner refers, is petitioner's statement that appointed counsel did not do any research concerning equitable tolling.

However, "[b]efore a second or successive application permitted by this section 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(b)(3)(A). Even though the prior petition was dismissed for failure to comply with the statute of limitations, it still renders later petitions successive for purposes of AEDPA. See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009).

Here, petitioner has not obtained an order from the Ninth Circuit authorizing the district court to consider this successive petition. Petitioner cannot proceed with his successive petition in this court unless and until he obtains such an order.

Therefore, this successive petition should be dismissed without prejudice to its refiling with a copy of an order from the Ninth Circuit authorizing petitioner to file a successive petition.

Accordingly, IT IS HEREBY ORDERED that:

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

2. A district judge be assigned to this case.

IT IS HEREBY RECOMMENDED that this successive petition should be dismissed without prejudice to its refiling with a copy of an order from the Ninth Circuit authorizing petitioner to file a successive petition.

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." Any reply to the objections shall be served and filed 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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