The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss arguing, among other things, that this matter should be dismissed pursuant to 28 U.S.C. § 2244 because the habeas petition before the court is "successive." (Dkt. No. 23.)
Court records for case number 2:06-cv-1964 FCD KJM P reveal that petitioner previously filed a petition for a writ of habeas corpus in this district attacking the conviction and sentence at issue in this case. The previous petition was filed on September 1, 2006, and was denied on the merits on August 3, 2009. Petitioner did not appeal.
Before petitioner can proceed with the instant successive petition, he must obtain authorization from the Ninth Circuit Court of Appeals. 28 U.S.C. § 2244(b)(3); Felker v. Turpin, 518 U.S. 651, 656--657 (1996). It does not appear petitioner has obtained the required authorization. Therefore, petitioner's habeas petition must be dismissed without prejudice to its refiling upon obtaining the required authorization.
In light of the foregoing, the court does not reach the argument presented by respondent that claims presented in this action are also time-barred.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's August 6, 2012 motion to dismiss (Dkt. No. 23) be granted;
2. Petitioner's application for writ of habeas corpus be dismissed without prejudice; and
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." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Any reply to the objections shall be served and filed within seven 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).
© 1992-2012 VersusLaw ...