(PC) Parvin v. Walker, No. 2:2012cv01013 - Document 10 (E.D. Cal. 2012)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/10/2012, ORDERING that petitioner's 1 request to proceed IFP is GRANTED; and RECOMMENDING that this action be dismissed without prejudice. Referred to Judge William B. Shubb; Objections due within 21 days. (Yin, K)
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(PC) Parvin v. Walker Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOHN ALAN PARVIN, Petitioner, 11 12 13 14 15 16 No. 2:12-cv-1013 WBS CKD P vs. JAMES WALKER, Respondent. ORDER AND / FINDINGS AND RECOMMENDATIONS Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254 along with an application to proceed in forma 18 pauperis. Petitioner has submitted a declaration that makes the showing required by 28 U.S.C. 19 § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted. 20 Court records for case number 2:09-cv-2198 JFM P reveal that petitioner 21 previously filed a petition for a writ of habeas corpus attacking the convictions and sentences 22 challenged in this case. The previous petition was filed on August 10, 2009, and was dismissed 23 as time-barred on March 1, 2010. Before petitioner can proceed with the instant successive 24 petition, he must obtain authorization from the Ninth Circuit Court of Appeals. 28 U.S.C. 25 § 2244(b)(3); see Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of habeas petition 26 as time barred “constitutes an adjudication on the merits that renders future petitions under § 1 Dockets.Justia.com 1 2254 challenging the same conviction ‘second or successive’ petitions under [28 U.S.C.§ 2 2244(b)]).” Therefore, petitioner’s habeas petition must be dismissed without prejudice to its 3 refiling upon obtaining the required authorization. Accordingly, IT IS HEREBY ORDERED that petitioner’s request for leave to 4 5 proceed in forma pauperis is granted; and IT IS HEREBY RECOMMENDED that this action be dismissed without 6 7 prejudice. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 10 one days after being served with these findings and recommendations, petitioner may file written 11 objections with the court. The document should be captioned “Objections to Magistrate Judge's 12 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 13 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 14 F.2d 1153 (9th Cir. 1991). 15 Dated: August 10, 2012 16 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 1 parv1013.suc 22 23 24 25 26 2
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