Ruiz v. Kirkland

Full title: RAMIRO GONZALEZ RUIZ, Petitioner, v. RICHARD KIRKLAND, Warden, Respondent

Court: United States District Court, E.D. California

Date published: Jan 31, 2006

CV F 05-1222 REC DLB HC, [Doc. 5] (E.D. Cal. Jan. 31, 2006)

Opinion

CV F 05-1222 REC DLB HC, [Doc. 5].

January 31, 2006

ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS AND REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS

ROBERT COYLE, District Judge

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On December 13, 2005, the Magistrate Judge issued Findings and Recommendations that the instant petition be DISMISSED as successive. Petitioner filed objections on January 17, 2006.

In his objections, Petitioner contends that his prior petition filed in CV-F-97-5654 was dismissed as untimely. A review of the file in CV-F-97-5654 REC HGB P indicates that the case was actually dismissed, without prejudice, for failure to exhaust the state court remedies. (CV-F-97-5654 REC HGB P, Court Doc. 17.) Thus, such a dismissal does not bar a second or subsequent petition to be filed. In re Turner, 101 F.3d 1323 (9^th Cir. 1996) (holding that section 2244(b) does not apply to a second or subsequent habeas petition where the first petition was dismissed without prejudice for failure to exhaust state remedies). Therefore, because Petitioner's prior petition did not render the instant petition successive, the Findings and Recommendations are not ADOPTED, and the matter is referred back to the Magistrate Judge for further proceedings.

IT IS SO ORDERED.