(HC) Henderson v. McDonald, No. 2:2010cv02787 - Document 7 (E.D. Cal. 2010)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/27/10 ORDERING that the Clerk of Court shall forward petitioners 2 and 3 motions, and a copy of the 1 petition, to the United States Courtof Appeals for t he Ninth Circuit; and the Clerk of Court is directed to randomly assign a district judge to this action. It is RECOMMENDED that this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 21 days. (Dillon, M)
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(HC) Henderson v. McDonald Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JEFFREY HENDERSON, 11 12 13 14 15 Petitioner, No. 2:10-cv-2787 KJN P vs. McDONALD, Warden, ORDER and Respondent. FINDINGS AND RECOMMENDATIONS / 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 motion to proceed in forma 18 pauperis and a motion for appointment of counsel. 19 The court’s records reveal that petitioner has previously filed an application for a 20 writ of habeas corpus attacking the 2001 conviction and sentence challenged in this case. The 21 previous application was filed on July 13, 2004, and was denied on the merits on May 31, 2007. 22 See Docket in Henderson v. Knowles, 2:04-cv-01341GEB CMK P. On September 29, 2008, the 23 Ninth Circuit Court of Appeals denied petitioner’s request for a certificate of appealability. 24 Petitioner filed the instant petition on October 14, 2010, which appears both to 25 directly challenge his conviction and to seek a Certificate of Appealability. The instant petition 26 follows the United States Supreme Court’s October 4, 2010 denial of petitioner’s petition for a Dockets.Justia.com 1 writ of certiorari. (Dkt. No. 1, at p. 45.) Previously, on June 24, 2009, the Sacramento County 2 Superior Court denied petitioner’s “third” petition for a writ of habeas corpus, finding that it was 3 “successive and untimely.” (Id. at 35-37.) Thereafter, on June 30, 2009, the Third District 4 California Court of Appeal denied petitioner’s application for a writ of habeas corpus, and, on 5 March 24, 2010, the California Supreme Court denied petitioner’s application for a writ habeas 6 corpus. (Id. at 39, 43.) 7 Before petitioner can proceed with the instant application he must move in the 8 United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to 9 consider the application. 28 U.S.C. § 2244(b)(3). Thus, petitioner’s application for a writ of 10 habeas corpus must be dismissed without prejudice to its refiling should petitioner obtain 11 authorization from the Court of Appeals. The Clerk of the Court will therefore be directed to 12 forward petitioner’s October 14, 2010 motions, along with a copy of the October 14, 2010 13 petition, to United States Court of Appeals for the Ninth Circuit. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The Clerk of Court shall forward petitioner’s October 14, 2010 motions (Dkt. 16 Nos. 2 and 3), and a copy of the August 16, 2010 petition (Dkt. No. 1), to the United States Court 17 of Appeals for the Ninth Circuit; and 18 2. The Clerk of Court is directed to randomly assign a district judge to this action. 19 Further, IT IS HEREBY RECOMMENDED that this action be dismissed without 20 prejudice. 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 23 one days after being served with these findings and recommendations, petitioner may file written 24 objections with the court. The document should be captioned “Objections to Magistrate Judge's 25 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 26 //// 1 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 DATED: October 27, 2010 4 5 6 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 hend2787.suc