Opinion
08-20-2013
GORDON ANDREW DOUGLAS, Petitioner, v. GREG LEWIS, Respondent.
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 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Petitioner did not file a proper request to proceed in forma pauperis. However, because petitioner does not have authority to proceed with his application, the court will not address the request.
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 April 28, 1997, and was dismissed pursuant to the parties' stipulation on April 24, 2012. See 2:97-cv-00775-KJM-JFM; Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). 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 RECOMMENDED that this action be dismissed without prejudice.
The court recognizes that petitioner, the only party in this action, consented to proceed before a magistrate judge. However, this matter was referred to a district judge on the grounds that she considered petitioner's prior application for a writ of habeas corpus.
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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. 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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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE