-KJN (HC) Gregory Downs v. Domingo Uribe Jr., No. 2:2011cv00176 - Document 11 (E.D. Cal. 2011)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/15/2011 ORDERING that ptnr's 7 motion to proceed IFP is GRANTED; the clerk to serve a copy of this order together w/ a copy of the petition on the AG; and RECOMMENDING that this action be dismissed w/out prejudice. Referred to Judge Lawrence K. Karlton; Objections due w/in 21 days. (cc: Michael Farrell) (Yin, K)
Download PDF
-KJN (HC) Gregory Downs v. Domingo Uribe Jr. Doc. 11 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GREGORY DOWNS, 11 Petitioner, 12 13 No. 2:11-cv-0176 LKK KJN P vs. DOMINGO URIBE, JR., 14 ORDER AND Respondent. 15 FINDINGS & RECOMMENDATIONS / 16 Petitioner, a state prisoner proceeding without counsel, has filed an application for 17 a writ of habeas corpus, together with a request to proceed in forma pauperis pursuant to 28 18 U.S.C. § 1915. Petitioner has submitted a declaration that makes the showing required by 19 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. 20 § 1915(a). 21 On January 12, 2011, petitioner filed the instant petition for writ of habeas corpus 22 in the United States District Court for the Central District of California. (Dkt. No. 1.) On 23 January 19, 2011, the petition was transferred to the Eastern District. This court’s own records 24 reveal that on January 19, 2011, petitioner filed a separate petition for writ of habeas corpus in 25 //// 26 //// 1 Dockets.Justia.com 1 this district. (Case No. 2:11-cv-0163 GEB KJN P.)1 Both petitions state that petitioner is not 2 challenging his conviction, but is filing a Rule 27 petition to obtain a deposition in Downs v. 3 Uribe, Case No. 10-2029 H (AJB) (S.D. Cal.) Petitioner’s filing in the instant action is virtually 4 identical to the petition filed in Case No. 2:11-cv-0163 GEB KJN P. Due to the duplicative 5 nature of the present action, the court will recommend that the instant petition be dismissed. 6 In accordance with the above, IT IS HEREBY ORDERED that: 7 1. Petitioner is granted leave to proceed in forma pauperis; and 8 2. The Clerk of Court is directed to serve a copy of this order together with a 9 copy of the petition filed in the instant case on the Attorney General of the State of California. 10 11 Further, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 12 These findings and recommendations are submitted to the District Judge assigned 13 to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after 14 being served with these findings and recommendations, petitioner may file written objections 15 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 16 and Recommendations.” Petitioner is advised that failure to file objections within the specified 17 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 18 (9th Cir. 1991). 19 DATED: April 15, 2011 20 21 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 22 23 down0176.23 24 25 1 26 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2