(HC) Starr v. Cano, No. 2:2016cv00510 - Document 5 (E.D. Cal. 2016)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 03/17/16 granting 2 Motion to Proceed IFP. The clerk of the court randomly assign a United States District Judge to this action. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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(HC) Starr v. Cano Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBIN GILLEN STARR, 12 13 14 15 No. 2:16-cv-0510 KJN P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS CANO, Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis 20 pursuant to 28 U.S.C. § 1915. 21 Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 22 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 23 28 U.S.C. § 1915(a). 24 The court’s records reveal that petitioner previously filed an application for a writ of 25 habeas corpus attacking the 2009 conviction and sentence challenged in this case. Starr v. State 26 of California, No. 2:12-cv-0457 MCE KJN (E.D. Cal.). The previous application was dismissed 27 on December 5, 2012 as untimely. Id., ECF No. 101. “[D]ismissal of a habeas petition as 28 1 Dockets.Justia.com 1 untimely constitutes a disposition on the merits and [ ] a further petition challenging the same 2 conviction [is] ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).” McNabb v. Yates, 3 576 F.3d 1028, 1029 (9th Cir. 2009); see also Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) 4 (dismissal of habeas petition as time barred constitutes an adjudication on the merits that renders 5 future petitions under § 2254 challenging the same conviction ‘second or successive’ petitions 6 under § 2244(b).”). Becauser petitioner challenges the same judgment now that he previously 7 challenged and which was adjudicated on the merits, the petition now pending is second or 8 successive. 9 Before petitioner can proceed with the instant application, he must move in the United 10 States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider 11 the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed 12 without prejudice to its re-filing upon obtaining authorization from the United States Court of 13 Appeals for the Ninth Circuit. 14 In accordance with the above, IT IS HEREBY ORDERED that: 15 1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is granted; 16 2. The Clerk of the Court randomly assign a United States District Judge to this action. 17 and 18 IT IS RECOMMENDED that this action be dismissed without prejudice. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, petitioner may file written 22 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 24 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 25 F.2d 1153 (9th Cir. 1991). 26 Dated: March 17, 2016 27 28 /star0510.succ 2

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