Opinion
No. 2:12-cv-01477 JFM P
05-08-2013
JAMAR ANTOINE FOSTER, Petitioner, v. MATTHEW CATE, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to proceed before a United States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c). See ECF Nos. 3, 9.
On November 9, 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 opposed respondent's motion on February 25, 2013. See ECF No. 13. 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 September 15, 2009, and was denied on the merits on July 21, 2011. See 2:09-cv-03238 KJN. 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 ORDERED that respondent's motion to dismiss is granted, and this action is dismissed without prejudice. The court declines to issue a Certificate of Appealability.
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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE