IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 6, 2012
SOPEE KHEN, PETITIONER,
RANDY GROUNDS, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel. On August 27, 2012, petitioner consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Pursuant to this court's August 6, 2012 order, petitioner 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).
The court's records reveal that petitioner has previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in this case. The previous application was filed on September 28, 2004, and was denied on the merits on November 6, 2007. Khen v. High Desert State Prison, 2:04-cv-2150 ALA. 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.
On August 27, 2012, petitioner renewed his motion for appointment of counsel. In light of the above, petitioner's motion is denied without prejudice.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis (dkt. no. 8) is granted;
2. Petitioner's August 27, 2012 motion to appoint counsel (dkt. no. 7) is denied without prejudice; and
3. This action is dismissed without prejudice.
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