-GGH (HC)(TEMP) Audette v. Swarthout, No. 2:2011cv01343 - Document 6 (E.D. Cal. 2011)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 6/6/2011 ORDERING the clerk to assign a district court judge to this case; and RECOMMENDING that this action be dismissed w/out prejudice. Assigned and Referred to Judge Kimberly J. Mueller; Objections due w/in 14 days. (Yin, K)

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-GGH (HC)(TEMP) Audette v. Swarthout Doc. 6 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CARLTON LEE AUDETTE, Petitioner, 11 12 13 14 vs. GARY SWARTHOUT, Respondent. 17 ORDER and / 15 16 No. CIV S-11-1343 GGH (TEMP) P FINDINGS & RECOMMENDATIONS Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. 18 Court records for case number CIV-S-06-0738 JWS P reveal that petitioner 19 previously filed a petition for a writ of habeas corpus attacking the conviction and sentence 20 challenged in this case. The previous petition was filed on April 5, 2006, and was denied on the 21 merits on January 29, 2009. Before petitioner can proceed with the instant successive petition, 22 he must obtain authorization from the Ninth Circuit Court of Appeals. 28 U.S.C. § 2244(b)(3). 23 Therefore, petitioner's habeas petition must be dismissed without prejudice to its refiling upon 24 obtaining the required authorization. 25 26 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case; and 1 Dockets.Justia.com IT IS HEREBY RECOMMENDED that this action be dismissed without 1 2 prejudice. These findings and recommendations are submitted to the United States District 3 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 5 days after being served with these findings and recommendations, petitioner may file written 6 objections with the court. The document should be captioned “Objections to Magistrate Judge's 7 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 8 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 9 F.2d 1153 (9th Cir. 1991). 10 DATED: June 6, 2011 11 /s/ Gregory G. Hollows 12 GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 13 14 GGH:kc aude1343.suc 15 16 17 18 19 20 21 22 23 24 25 26 2

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