Opinion
2:21-cv-00176 WBS GGH P
06-24-2021
KENNETH W. McGRAW, Petitioner, v. CISNEROS, Warden, Respondent.
FINDINGS AND RECOMMENDATIONS
Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE
Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pending before the court is petitioner's motion to stay proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 11. Review of petitioner's motion to stay reveals petitioner is seeking to challenge his 1992 conviction in the Placer County Superior Court. Upon initial screening by the court, petitioner's original petition presented a claim relating to a denial of a trial transcript by the trial court. Compare ECF No. 1, with ECF No. 7, and ECF No. 11. However, petitioner's new assertions inform the court that petitioner seeks to pursue a habeas action challenging his 1992 conviction. The court's records reveal 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 in 2015 and was denied on the merits on April 30, 2017. See McGraw v. Lizarraga, 2:15-cv-01150-GEB-CMK. (The petition was dismissed in part on the basis of the statute of limitations). Accordingly, before petitioner can proceed with the instant application, he must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the application. See 28 U.S.C. § 2244(b)(3). Therefore, petitioner's application must be dismissed without prejudice to its re-filing upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit.
A court may take judicial notice of court filings and other matters of public record. See Burbank- Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir.1998).
In light of the above, petitioner's motion to stay should be denied as moot.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's motion to stay (ECF No. 11) be DENIED as moot; and
2. This action be dismissed as a second or successive habeas corpus application without prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition.
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. 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).