Opinion
No. 2:20-cv-00667 GGH P
04-20-2020
JERRY PROFFITT, Petitioner, v. JOE LAZARRAG, Warden, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis (ECF No. 2) is granted. See 28 U.S.C. § 1915(a). Petitioner's second request to proceed in forma pauperis (ECF No. 6) will be denied as duplicative.
Petitioner challenges his 2001 conviction in the Shasta County Superior Court for charges pursuant to Cal. Penal Code § 288 (lewd and lascivious acts with a minor child) and § 288.5 (continuous sexual abuse of a minor). ECF No. 1. 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 on September 27, 2006 and was dismissed as barred by the statute of limitations pursuant to 28 U.S.C. § 2244(d) on September 27, 2007. See Proffitt v. Campbell, 2:06-cv-02143-GEB-GGH, ECF Nos. 1, 101, 104, 105. 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.
The court may take judicial notice of court records in other cases. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004). --------
Due to the court's recommendation that petitioner's federal habeas petition be dismissed as second or successive, petitioner's motion to appoint counsel (ECF No. 3) and motion to attend oral argument (ECF No. 8) are denied as moot.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's application to proceed in forma pauperis (ECF No. 2) is GRANTED;
2. Petitioner's second application to proceed in forma pauperis (ECF No. 6) is DENIED as duplicative;
3. Petitioner's motion to appoint counsel (ECF No. 3) and motion to attend oral argument (ECF No. 8) are DENIED as moot; and
4. The Clerk of the Court shall assign this case to a district judge.
Further, IT IS HEREBY RECOMMENDED that 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). Dated: April 20, 2020
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE