(HC) Brown v. Cullen, No. 2:2010cv02679 - Document 8 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 11/09/10 recommending that this action be dismissed without prejudice. Referred to Judge William B. Shubb. Objections due within 21 days. (Plummer, M)
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(HC) Brown v. Cullen Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RICHARD N. BROWN, 11 Petitioner, 12 13 14 No. CIV S-10-2679 WBS KJM P vs. VINCENT CULLEN, 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. See No. 24 CIV-S-99-0241 WBS GGH P. Before petitioner can proceed with the instant application he 25 must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing 26 the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner's 1 Dockets.Justia.com 1 application must be dismissed without prejudice to its refiling upon obtaining authorization from 2 the United States Court of Appeals for the Ninth Circuit. Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed 3 4 without prejudice. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 7 one days after being served with these findings and recommendations, petitioner may file written 8 objections with the court. The document should be captioned “Objections to Magistrate Judge's 9 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 10 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 11 F.2d 1153 (9th Cir. 1991). 12 DATED: November 9, 2010. 13 14 15 1 brow2670.succ 16 17 18 19 20 21 22 23 24 25 26 2