Opinion
No. 2:13-cv-1633 KJM CKD P
10-30-2013
HASSAN ROBERTS, Petitioner, v. DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondent.
ORDER AND FINDINGS AND
RECOMMENDATIONS
On September 25, 2013, the court recommended that this action be dismissed because petitioner had not paid the filing fee or filed an application to proceed in forma pauperis. Petitioner paid the filing fee on October 21, 2013. Therefore, the court will vacate the September 25, 2013 findings and recommendations.
Petitioner has filed an application for writ of habeas corpus under 28 U.S.C. § 2254. The petition is the same as a petition filed by petitioner on June 3, 2013 and then dismissed for lack of jurisdiction on July 17, 2013 in 2:13-cv-1100 CKD P. Petitioner did not appeal judgment in that case. Under 28 U.S.C. § 2241(b)(1), the court must dismiss any claim that has been adjudicated in a prior habeas action. That being the case, the court will recommend that the habeas petition before the court be dismissed.
This is actually the third time petitioner has submitted a habeas petition with the claims presented in this action. He also filed a petition on March 29, 2013 and that petition was assigned case number 2:13-cv-0649 CKD P. That case was dismissed without prejudice on June 11, 2013 because petitioner failed to file an amended petition.
Accordingly, IT IS HEREBY ORDERED that the court's September 25, 2013 findings and recommendations are vacated.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's application for writ of habeas corpus be dismissed; 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)(l). 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).
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE