Opinion
Case No. 2:20-cv-02641-JGB (AFM)
09-02-2020
DAVID RANDOLPH SMITH, Petitioner, v. MONA D. HOUSTON, Warden, Respondent.
ORDER (1) ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE AND (2) REFERRING PETITIONER'S REQUEST FOR AUTHORIZATION TO NINTH CIRCUIT (ECF NO. 19)
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file and the Report and Recommendation ("Report") of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which objections have been made. Petitioner's objections are overruled.
Petitioner has also filed a Request for Authorization to File a Second or Successive Petition. (ECF No. 19.) Although the caption indicates that Petitioner intended to file it in the Ninth Circuit Court of Appeals, the petition was filed in this Court. Ninth Circuit Rule 22-3(a) states, in pertinent part, that "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Because it appears that Petitioner mistakenly submitted his request in this Court, the request is referred to the Court of Appeals. See Scott v. Neuschmid, 2019 WL 5294396, at *2 (C.D. Cal. Oct. 18, 2019) (simultaneously referring successive habeas petition to Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a) and dismissing action without prejudice for lack of jurisdiction); Ciotta v. Frauenheim, 2018 WL 6025845, at *3 (C.D. Cal. Nov. 8, 2018) (same); Thomas v. Asuncion, 2018 WL 4027105, at *2 (C.D. Cal. Aug. 20, 2018).
IT THEREFORE IS ORDERED that:
(1) The Report and Recommendation of the Magistrate Judge is accepted and adopted.
(2) Judgment shall be entered dismissing Grounds One through Four of the petition with prejudice and dismissing Ground Five of the petition for lack of jurisdiction.
(3) Pursuant to Ninth Circuit Rule 22-3(a), Petitioner's request for authorization to file a second or successive petition is referred to the Court of Appeals. The Clerk of Court shall send a copy of the Petition and this Order to the Clerk of the Court of Appeals for the Ninth Circuit. The Clerk also shall mail Petitioner a copy of Ninth Circuit Rule 22-3 and Ninth Circuit Court of Appeals Form 12, entitled "Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255." DATED: September 2, 2020
/s/_________
JESUS G. BERNAL
UNITED STATES DISTRICT JUDGE