(HC) Moreland v. Alfaro, No. 2:2016cv02700 - Document 3 (E.D. Cal. 2016)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/20/2016 ORDERING the Clerk to randomly assign a US District Judge to this action. IT IS RECOMMENDED that this action be dismissed without prejudice. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)

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(HC) Moreland v. Alfaro Doc. 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH D. MORELAND, 12 Petitioner, 13 No. 2:16-cv-02700 GGH ORDER AND FINDINGS AND RECOMMENDATIONS v. 14 SANDRA ALFARO, Warden, 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. The court’s records reveal that petitioner has previously 19 filed an application for a writ of habeas corpus attacking the conviction and sentence challenged 20 in this case. The previous application was filed on January 6, 2015, and was denied as 21 successive, which itself referenced a Northern District, CA habeas, CO1-1470-MJJ, which had 22 been dismissed as untimely, i.e., on the merits on March 1, 2016.1 See Moreland v. Arnold, 23 2:15-cv-0286 KJM AC. The current petition represents a successive challenge to the same 1996 24 conviction at issue in petitioner’s prior petition. Before petitioner can proceed with the instant 25 application, he must move in the United States Court of Appeals for the Ninth Circuit for an order 26 authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). In the absence 27 28 1 The Northern District, CA 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 Dockets.Justia.com 1 of such an order this court has no jurisdiction to address the present petition. Burton v. Stewart, 2 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 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 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a United States District Judge to this action. 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 20, 2016 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 16 17 GGH:076/More.286.success 18 19 20 21 22 23 24 25 26 27 28 2

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