(HC) Nguyen v. Davey, No. 2:2015cv02054 - Document 6 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/8/2015 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections due within 21 days. (Yin, K)
Download PDF
<![CDATA[
(HC) Nguyen v. Davey Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAI NGUYEN, 12 Petitioner, 13 14 15 No. 2:15-cv-02054 KJM AC P v. FINDINGS AND RECOMMENDATION DAVID DAVEY, Warden, Corcoran State Prison, 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 request to proceed in forma pauperis demonstrates that it is 20 21 incomplete.1 More importantly, the court’s records reveal that petitioner has previously filed an 22 23 application for a writ of habeas corpus attacking the conviction and sentence challenged in this 24 case. See Nguyen v. Scribner, Case No. 2:06-cv-01389 GEB CMK P. The previous application 25 was filed on June 22, 2006, and denied as untimely on October 31, 2006. Thereafter, the United 26 States Court of Appeals for the Ninth Circuit denied petitioner’s request for a certificate of 27 28 1 Petitioner’s request to proceed in forma pauperis is not set forth on the proper form, does not provide the required information, and fails to include the appropriate documentation. 1 Dockets.Justia.com 1 2 appealability. Before petitioner can proceed with the instant application, he must move in the Ninth 3 Circuit Court of Appeals for an order authorizing the district court to consider the application. 4 See 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s instant application must be dismissed without 5 prejudice to its re-filing upon authorization from the Court of Appeals. 6 7 8 9 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 10 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: December 8, 2015 16 17 18 19 20 21 22 23 24 25 26 27 28 2
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
