(HC) Foster v. Virga, No. 2:2013cv02138 - Document 7 (E.D. Cal. 2013)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/05/13 granting 2 Motion to Proceed IFP. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARLOS FOSTER, 12 Petitioner, 13 14 v. No. 2:13-cv-2138 KJM GGH P ORDER AND FINDINGS AND RECOMMENDATIONS TIM VIRGA, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 20 21 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 22 28 U.S.C. § 1915(a). The court’s records reveal that petitioner has previously filed an application for a writ of 23 24 habeas corpus attacking the conviction and sentence challenged in this case. The previous 25 application was filed on May 24, 2012, and was denied on the merits on March 29, 2013.1 See 26 Foster v. Virga, No. 2:12-cv-1460 CKD. Before petitioner can proceed with the instant 27 28 1 The previous petition was dismissed as time barred which is a decision on the merits. See McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009). 1 1 application, he must move in the United States Court of Appeals for the Ninth Circuit for an order 2 authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, 3 petitioner’s application must be dismissed without prejudice to its refiling upon obtaining 4 authorization from the United States Court of Appeals for the Ninth Circuit. 5 6 In accordance with the above, IT IS HEREBY ORDERED that petitioner’s application to proceed in forma pauperis is granted; and 7 IT IS RECOMMENDED that this action be dismissed without prejudice. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 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: November 5, 2013 16 /s/ Gregory G. Hollows 17 UNITED STATES MAGISTRATE JUDGE 18 GGH:076/Fost2138.success 19 20 21 22 23 24 25 26 27 28 2

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