IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 6, 2013
JERRY PROFFITT, PETITIONER,
POWER, WARDEN, RESPONDENT.
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. Petitioner has consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Docket No. 4.)
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 same conviction and sentence which he seeks to challenge in this case, Case No. 2:06-cv-2143 GEB GGH. The previous application was filed on September 27, 2006, and was denied by the court on the merits on September 27, 2007. 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.
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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