(HC) Gaines v. Adams, No. 2:2010cv00429 - Document 9 (E.D. Cal. 2010)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 4/30/2010 GRANTING petitioner's 8 application to proceed IFP; and RECOMMENDING that this action be dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due w/in 21 days. (Yin, K)
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(HC) Gaines v. Adams Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DARIUS GAINES, Petitioner, 11 12 13 14 No. CIV S-10-0429 MCE KJM P vs. DARRELL G. ADAMS, ORDER AND Respondent. FINDINGS AND RECOMMENDATIONS / 15 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 18 pursuant to 28 U.S.C. § 1915. 19 Examination of the in forma pauperis affidavit reveals that petitioner is unable to 20 afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is 21 granted. See 28 U.S.C. § 1915(a). 22 The court’s records reveal that petitioner has previously filed an application for a 23 writ of habeas corpus attacking the conviction and sentence challenged in this case. The 24 previous application was filed on January 5, 2004, and was denied on the merits on November 25 16, 2006. See CIV-S-04-0018 FCD GGH P. Before petitioner can proceed with the instant 26 application he must move in the United States Court of Appeals for the Ninth Circuit for an order 1 Dockets.Justia.com 1 authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, 2 petitioner's application must be dismissed without prejudice to its refiling upon obtaining 3 authorization from the United States Court of Appeals for the Ninth Circuit. Accordingly, IT IS HEREBY ORDERED that petitioner’s application to proceed 4 5 in forma pauperis is granted; and 6 IT IS HEREBY RECOMMENDED that this action be dismissed. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 9 one days after being served with these findings and recommendations, petitioner may file written 10 objections with the court. The document should be captioned “Objections to Magistrate Judge's 11 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 12 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 13 F.2d 1153 (9th Cir. 1991). 14 DATED: April 30, 2010. 15 16 17 1 gain0018.suc 18 19 20 21 22 23 24 25 26 2
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