-DAD (HC) Woods v. Brown et al, No. 2:2010cv03489 - Document 7 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 4/1/11 RECOMMENDING that this action be dismissed without prejudice; 1 Petition referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days. (Dillon, M)

Download PDF
-DAD (HC) Woods v. Brown et al Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BARRY DEWAYNE WOODS, Petitioner, 11 vs. 12 13 No. 2:10-cv-3489 LKK DAD (HC) A. HEDGEPETH, et al., Respondents. 14 FINDINGS & 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. Petitioner has paid the $5.00 filing fee for this 18 action. 19 The court’s records reveal that petitioner has previously filed an application for a 20 writ of habeas corpus attacking the same conviction and sentence that petitioner seeks to 21 challenge in this habeas action. The previous application for federal habeas relief was filed with 22 this court on September 24, 2001, and was denied as barred by the statute of limitations on 23 September 9, 2003. Before petitioner can proceed with the instant application for habeas relief 24 he must move in the United States Court of Appeals for the Ninth Circuit for an order 25 authorizing the district court to consider the second or successive application. See 28 U.S.C. 26 § 2244(b)(3); see also McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (“dismissal of a 1 Dockets.Justia.com 1 section 2254 habeas petition for failure to comply with the statute of limitations renders 2 subsequent petitions second or success for purposes of the AEDPA, 28 U.S.C. §2244(b).”). 3 Therefore, petitioner’s application must be dismissed without prejudice to its refiling upon 4 obtaining authorization from the United States Court of Appeals for the Ninth Circuit. In accordance with the above, IT IS HEREBY RECOMMENDED that this action 5 6 be dismissed without prejudice. These findings and recommendations are submitted to the United States District 7 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 9 days after being served with these findings and recommendations, petitioner may file written 10 objections with the court. The document should be captioned “Objections to Magistrate Judge's 11 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 12 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 13 F.2d 1153 (9th Cir. 1991). 14 DATED: April 1, 2011. 15 16 17 18 19 DAD:12 wood3489.success 20 21 22 23 24 25 26 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.