IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 24, 2012
PHILLIP BUSBY, PETITIONER,
FRED FIGUEROA, RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER and FINDINGS and RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss, arguing, among other things, that this petition is successive. Petitioner has responded, asking to withdraw his petition. For the reasons outlined below, the undersigned recommends that respondent's motion be granted, and that this petition be dismissed without prejudice.
On October 25, 2001, petitioner was convicted by jury of six counts of assault with a deadly weapon and second degree robbery. See Doc. No. 1 at 1; Lodged Doc. No. 1. Petitioner was subsequently sentenced to 45 years imprisonment under the Three Strikes Law. See Lodged Doc. Nos. 1, 2.
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 August 26, 2004, and was denied on the merits on March 31, 2008. See Busby v. McGraph, 2:04-cv-2000 FCD GGH, Doc. Nos. 1, 23, 24. 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.
Petitioner's response to the motion to dismiss warrants comment. Petitioner has asked to withdraw his petition, apparently because he now realizes that he failed to exhaust certain claims. See Doc. No. 14 at 2. He asks that, if the court is unwilling to allow the withdrawal, that he be allowed to proceed on the exhausted claims. Id. However, this court lacks jurisdiction to adjudicate the petition until the Court of Appeals grants petitioner permission to file this second or successive petition, as outlined above. See 28 U.S.C. § 2244. Accordingly, the undersigned recommends that the petition be dismissed without prejudice as successive - petitioner may then proceed to exhaust any claims and to seek any appropriate permissions from the Court of Appeals, should he chose to do so.
In accordance with the above, IT IS HEREBY ORDERED that petitioner's application to proceed in forma pauperis (Doc. No. 8) is granted; and
IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (Doc. No. 12) be granted, and
2. This action be dismissed without prejudice.
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, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is 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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