(HC) Thompson v. Scribner, No. 2:2010cv01214 - Document 9 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 06/14/10 granting 2 Motion to Proceed IFP. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell. Objections due within 14 days.(Plummer, M)
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(HC) Thompson v. Scribner Doc. 9 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BERTRAND THOMPSON, Petitioner, 11 12 13 14 No. 2:10-cv-1214 GEB KJN P vs. LARRY SCRIBNER, ORDER AND Respondent. FINDINGS & RECOMMENDATIONS / 15 16 Petitioner, a state prisoner proceeding without counsel, has filed an application for 17 a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma 18 pauperis 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 June 27, 2003, and was denied on the merits on September 18, 25 2007. Before petitioner can proceed with the instant application he must move in the United 26 States Court of Appeals for the Ninth Circuit for an order authorizing the district court to 1 Dockets.Justia.com 1 consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner's application must be 2 dismissed without prejudice to its refiling upon obtaining authorization from the United States 3 Court of Appeals for the Ninth Circuit. Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed 4 5 without prejudice. These findings and recommendations are submitted to the United States District 6 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 8 days after being served with these findings and recommendations, petitioner may file written 9 objections with the court. The document should be captioned “Objections to Magistrate Judge's 10 Findings and Recommendations.” Any response to the objections shall be filed and served 11 within fourteen days after service of the objections. Petitioner is advised that failure to file 12 objections within the specified time may waive the right to appeal the District Court's order. 13 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 DATED: June 14, 2010 15 16 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 17 18 19 thom1214.succ 20 21 22 23 24 25 26 2
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