Opinion
2:23-cv-00629-KJM-JDP (HC)
07-21-2023
VICTOR ANTHONY ORTEGA, Petitioner, v. T. LEMONS, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 11, 2023, the magistrate judge filed findings and recommendations, which were served on petitioner and which contained notice to petitioner that any objections to the findings and recommendations were to be filed within fourteen days. Petitioner has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.
In petitioner's objections, he explains he did file a request to file a second petition with the Ninth Circuit, but he did not include a copy of the petition-the petition that was filed in this court, see Petition, ECF No. 1. Objs. at 1, ECF No. 5. He claims he does not have a copy of the petition and thus requests the court send the petition to the Ninth Circuit on his behalf. Id. Although this court will not transmit documents to the Ninth Circuit for the petitioner, it can send petitioner a copy of the petition by mail, which the petitioner may then use to request a second petition. The Clerk of Court is therefore directed to send petitioner a copy of the petition, ECF No. 1, by first-class mail via the United States Postal Service.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed April 11, 2023, are adopted in full;
2. The petition, ECF No. 1, is dismissed without prejudice;
3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253;
4. The Clerk of Court is directed to send petitioner a copy of the petition, ECF No. 1, by first-class mail via the United States Postal Service; and
5. The Clerk of Court is directed to close this case and to enter judgment accordingly.