(HC) DeLuna v. Biter, No. 2:2014cv01247 - Document 3 (E.D. Cal. 2014)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 5/27/14 ORDERING that the Clerk of the Court assign a district court judge to this case; and recommending that the Clerk of the Court assign a district court judge to this case; and it is RECOMMENDED that this action be dismissed without prejudice. Randomly assigned and referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, 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 DWAYNE THOMAS DELUNA, 12 No. 2:14-cv-1247 CKD P Petitioner, 13 v. 14 MARTIN BITER, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondents. 16 Petitioner, a California prisoner proceeding with counsel, has filed an application for a 17 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee. Court records reveal that petitioner has previously filed an application for a writ of habeas 19 20 corpus attacking the conviction and sentence challenged in this case. The previous application 21 was filed on October 30, 2000, assigned case number 2:00-cv-2414 LKK JFM P, and denied on 22 the merits on September 28, 2005.1 Petitioner attempted to appeal the denial of his application, 23 but the Ninth Circuit denied a certificate of appealability on June 30, 2006. Before petitioner can proceed with the application filed in this case, he must move in the 24 25 United States Court of Appeals for the Ninth Circuit for an order authorizing this court to 26 consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be 27 28 1 Petitioner erroneously refers to this federal habeas corpus petition as an appeal to the California Supreme Court. ECF No. 1 at ¶ 25. 1 1 dismissed without prejudice to its refiling upon obtaining the required authorization from the 2 Ninth Circuit.2 3 4 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case; and 5 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, petitioner may file written 9 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 10 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 11 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 12 F.2d 1153 (9th Cir. 1991). 13 Dated: May 27, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 1 delu1247.sp 21 22 23 24 25 2 26 27 28 The application before the court is actually petitioner’s second successive application. The application filed in 2:08-cv-1135 WBS KJM P was dismissed on February 4, 2010 also because petitioner failed to obtain the required authorization from the Ninth Circuit before filing. Petitioner also erroneously refers to this federal habeas corpus petition as an appeal to the California Supreme Court. ECF No. 1 at ¶ 28. 2
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