IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 18, 2013
HERMAN GARCIA SANDOVAL, PETITIONER,
WILLIAM KNIPP, RESPONDENT.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
FINDINGS & 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. On December 17, 2012, respondent filed a motion to dismiss arguing two grounds for dismissal: (1) petitioner's habeas corpus application is successive under 28 U.S.C. § 2244(b); and (2) the application is barred by the statute of limitations under 28 U.S.C. § 2244(d). See ECF No. 10. Petitioner has not filed an opposition or statement of non-opposition in response to respondent's motion. The court finds respondent's first ground for dismissal is dispositive, and therefore does not reach his second ground for dismissal regarding the statute of limitations.
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 January 3, 2007, and was denied on the merits on August 3, 2011. See 2:07-cv-00004 RSM JLW. 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.
Accordingly, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss be granted, and 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." Any response to the objections shall be filed and served within fourteen days after service of the objections. 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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