United States District Court, E.D. California
March 9, 2015
JOHN EARL JONES, Petitioner,
T. HOLT, Warden, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. He challenges a 2007 El Dorado County conviction for continuous sexual abuse of a child under the age of 14.
A review of the docket for case number 2:11-cv-1659 MCE EFB P reveals that petitioner challenged the conviction at issue in this action in that action as well. On September 21, 2012, the habeas petition in 2:11-cv-1659 MCE EFB P was dismissed as time-barred. Before petitioner can proceed with the instant successive 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)]"). It does not appear petitioner has obtained the required authorization. Therefore, petitioner's habeas petition must be dismissed without prejudice to its re-filing upon petitioner obtaining the required authorization.
Accordingly, IT IS HEREBY ORDERED that the Clerk shall assign a district judge to this case.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's application for a writ of habeas corpus be dismissed without prejudice; and
2. This case be closed.
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)(1). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). 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).