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Dungan v. Spearman

United States District Court, E.D. California

February 27, 2014

ERIC KENNETH DUNGAN, Petitioner,
v.
M. E. SPEARMAN, Respondent.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

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 the jurisdiction of the undersigned magistrate judge for all purposes. (Dkt. Nos. 5, 6.) See 28 U.S.C. § 636(c); Local Rule 305(a).

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 May 17, 2010, and was denied on the merits on November 22, 2011. See Dungan v. Barnes, Case no. 2:10-cv-01191 DAD P. The Judgement was affirmed by the United States Court of Appeals for the Ninth Circuit, by memorandum decision issued December 6, 2012 (Case No. 11-17992).

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 (ECF No. 2), is granted; and
2. This action is dismissed without prejudice.

SO ORDERED.


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