Opinion
No. 2:14-cv-2643 JAM CKD P
01-28-2015
MYLVIN OTIS LEWIS, Petitioner, v. J. LIZARRAGA, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a California prisoner proceeding pro se with an application for writ of habeas corpus under 28 U.S.C. ¶ 2254. On January 5, 2015, the court recommended that this action be dismissed because petitioner had not paid the filing fee or filed a request for leave to proceed in forma pauperis. Petitioner filed a motion for leave to proceed in forma pauperis on January 15, 2015. Accordingly, the court's findings and recommendations will be vacated.
Examination of petitioner's request for leave to proceed in forma pauperis reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
A review of the docket for case number 2:03-cv-2211 GEB EFB P reveals that petitioner challenged the convictions at issue in this action in that action as well. On March 23, 2010, the habeas petition in 2:03-cv-2211 GEB EFB P was denied. 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). 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:
1. The court's January 5, 2015 findings and recommendations are vacated; and
2. Petitioner's motion to proceed in forma pauperis (ECF No. 10) is granted.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's petition for 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 and serve a copy on all parties. 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). Dated: January 28, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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