IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 9, 2011
GEORGE EUGENE CROSS, PETITIONER,
KAPLAN, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Examination of this action and the court's records reveals that the petitioner has previously filed a petition for relief in the same matter.*fn1 (No. CIV S-09-0488 LKK KJM.) Petitioner concedes this point. Petition, p. 2. Although pursuant to Local Rule 190(d), if this court were to retain jurisdiction of the above-captioned action it would be reassigned to the district judge who considered the prior petition, Judge Mueller has subsequently been appointed to the district court bench, therefore the undersigned retains assignment in this matter as the magistrate judge.
As noted, petitioner himself acknowledges he has previously challenged the same 2003 Sacramento County Superior Court conviction for which he was sentenced to a term of 77 years to life. Petition, p. 2. The prior petition (case no. CIV S-09-0488 LKK KJM) was dismissed as untimely, judgment thereon entered on March 31, 2010; in addition the district court declined to issue a certificate of appealability. On appeal, petitioner was denied a certificate of appealability by the Ninth Circuit, on February 28, 2011, for failure to file a timely notice of appeal.
"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."*fn2
Accordingly, IT IS ORDERED that the instant petition be transferred to the Ninth Circuit Court of Appeals.