IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 29, 2012
MARLOWE BROWN, PETITIONER,
U.S. DISTRICT COURT, ET AL.,
The opinion of the court was delivered by: Carolyn K. Delaney 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. He challenges 2004 Sacramento County convictions for attempted murder and other offenses as well as the resulting 41 years-to-life sentence of imprisonment.
Petitioner has filed an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Court records for case number 2:09-cv-3241 JAM DAD P reveal that petitioner previously filed a petition for a writ of habeas corpus attacking the convictions and sentence challenged in this case. The operative third amended petition was filed in that action on March 22, 2010, and was dismissed as time-barred on January 14, 2011. Petitioner later appealed. The Ninth Circuit affirmed the dismissal of petitioner's habeas petition on February 22, 2012 and the mandate issued on July 25, 2012. The court received the habeas petition filed in this action on September 28, 2012.
Before petitioner can proceed with the instant successive habeas petition, he must obtain authorization from the Ninth Circuit Court of Appeals. 28 U.S.C. § 2244(b)(3); see Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of habeas petition as time barred "constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction 'second or successive' petitions under [28 U.S.C. § 2244(b)])." Therefore, petitioner's habeas petition must be dismissed without prejudice to refiling upon petitioner obtaining the required authorization.
Accordingly IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis (Dkt. No. 7) is granted; and
IT IS HEREBY RECOMMENDED that petitioner's application for writ of habeas corpus 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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