Opinion
No. 2:16-cv-0020 JAM AC P
05-04-2016
ROBERTO HERRERA, Petitioner, v. D. DAVEY, Respondent.
ORDER AND 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.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. ECF No. 5. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
In the instant petition, petitioner challenges his September 9, 2010 conviction for battery on a non-inmate and possession of a homemade prison weapon. ECF No. 1 at 1. Petitioner was sentenced to an indeterminate term of twenty-five years to life. Id. He alleges that his due process rights and right to effective assistance of counsel were violated and that he has new evidence that was not heard by the court. Id. at 5, 7, 17-20.
The petition states (id. at 10), and the court's records confirm, 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 February 22, 2012; challenges the conviction and sentence on the same grounds; and was pending at the time petitioner filed the instant petition. Id.; Herrera v. Gipson (Gipson), No. 2:12-cv-00508 DAD, ECF No. 1. The issue of new evidence has also been raised in Gipson. Gipson, ECF No. 119. Petitioner is represented by counsel in Gipson, and since the filing of the instant petition, the petition in Gipson was denied on the merits on April 1, 2016, and petitioner filed a notice of appeal on April 15, 2016. Gipson, ECF Nos. 125, 126. This court takes judicial notice of the record in that proceeding. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) ("[A] court may take judicial notice of its own records in other cases.").
Because the instant petition is duplicative of the petition in Gipson, which is not yet final because petitioner is pursuing an appeal, the court will recommend the instant petition be dismissed as duplicative.
Accordingly, IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis (ECF No. 5) is granted.
IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice because it is duplicative of Herrera v. Gipson, No. 2:12-cv-00508 DAD, in which petitioner is currently pursuing an appeal.
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 twenty-one 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). DATED: May 4, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE