(HC) Ellington v. State of California, No. 2:2009cv02815 - Document 4 (E.D. Cal. 2009)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 10/19/2009 ORDERING that clerk assign action to district court judge. RECOMMENDING that 1 Petition for Writ of Habeas Corpus be dismissed without prejudice. Objections due within 20 days. Judge John A. Mendez assigned to case. (Suttles, J)

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(HC) Ellington v. State of California Doc. 4 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BOBBY H. ELLINGTON, SR., Petitioner, 11 No. CIV S-09-2815 KJM P vs. 12 13 STATE OF CALIFORNIA, 14 ORDER AND Respondent. FINDINGS AND RECOMMENDATIONS / 15 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 16 17 habeas corpus pursuant to 28 U.S.C. § 2254. The court’s records reveal that petitioner has 18 previously filed an application for a writ of habeas corpus attacking the conviction and sentence 19 challenged in this case. The previous application was filed on February 9, 2001, and was denied 20 on the merits on February 10, 2006. See Ellington v. California, CIV-S-01-0273 JKS KJM P. 21 Before petitioner can proceed with the instant application he must move in the United States 22 Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the 23 application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner's application must be dismissed 24 without prejudice to its refiling upon obtaining authorization from the United States Court of 25 Appeals for the Ninth Circuit. 26 ///// 1 Dockets.Justia.com Accordingly, IT IS HEREBY ORDERED that the clerk of the court assign this 1 2 action to a district court judge; and IT IS HEREBY RECOMMENDED that this action be dismissed without 3 4 prejudice to refiling upon obtaining authorization from the United States Court of Appeals for 5 the Ninth Circuit. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 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.” Petitioner is advised that failure to file objections within the 11 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 12 F.2d 1153 (9th Cir. 1991). 13 DATED: October 19, 2009. 14 15 16 1 elli2815.suc 17 18 19 20 21 22 23 24 25 26 2

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