IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 3, 2012
VINCENT EUGENE GOREE, PETITIONER,
IRONWOOD STATE PRISON, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, 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. Plaintiff has consented to the jurisdiction of the magistrate judge for all purposes. (Dkt. No. 4.) See 28 U.S.C. § 636(c); Local Rule 305(a).
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 (Dkt. No. 5), is granted. See 28 U.S.C. § 1915(a).
The court's records reveal that petitioner previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in the instant action. The previous application was filed on August 16, 2002, and was denied on the merits on September 20, 2005. See Goree v. Terhune, Case No. 2:02-cv-01779 GEB KJM P (E.D. Cal.).
Before petitioner can proceed with the instant application in this court, 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. See 28 U.S.C. § 2244(b)(3). Therefore, petitioner's application for a writ of habeas corpus 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.
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