(HC) Alexander v. Arnold, No. 2:2016cv00060 - Document 7 (E.D. Cal. 2016)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/1/2016 GRANTING petitioner's 2 request to proceed IFP. IT IS RECOMMENDED that this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL KEITH ALEXANDER, 12 No. 2:16-cv-0060 GEB CKD P Petitioner, 13 v. 14 ERIC ARNOLD, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Examination of the request to proceed in forma pauperis reveals 20 that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed 21 in forma pauperis is granted. See 28 U.S.C. § 1915(a). Court records reveal that petitioner has previously filed an application for a writ of habeas 22 23 corpus attacking the conviction and sentence challenged in this case. The previous application 24 filed in 2:14-cv-0644 JKS P was denied on the merits on September 15, 2015 and is currently on 25 appeal at the Ninth Circuit. Before petitioner can proceed with the instant successive petition, he 26 must move in the Ninth Circuit for an order authorizing the district court to consider the petition. 27 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s habeas petition must be dismissed without 28 ///// 1 1 prejudice to its refiling upon petitioner obtaining the required authorization from the Ninth 2 Circuit. 3 4 Accordingly, IT IS HEREBY ORDERED that petitioner’s request for leave to proceed in forma pauperis is granted; and 5 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, petitioner may file written 9 objections with the court. Such a document should be captioned “Objections to Magistrate 10 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 11 certificate of appealability should issue in the event he files an appeal of the judgment in this 12 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 13 deny a certificate of appealability when it enters a final order adverse to the applicant). Petitioner 14 is advised that failure to file objections within the specified time may waive the right to appeal the 15 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: February 1, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 1 alex0060.suc 23 24 25 26 27 28 2
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