(HC) Ortiz v. Baughman, No. 2:2018cv00255 - Document 7 (E.D. Cal. 2018)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/22/2018 ORDERING the 4 court's order filed 2/22/2018 is VACATED as unnecessary; petitioner's 5 request for appointment of counsel is DENIED as moot; and the Clerk shall randomly assign a district judge to this action. IT IS RECOMMENDED that this action be dismissed without prejudice because premised on an unauthorized successive petition for writ of habeas corpus under 28 U.S.C. § 2254. Assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)
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(HC) Ortiz v. Baughman Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS MICHAEL ORTIZ, 12 Petitioner, 13 14 v. ORDER and DAVID BAUGHMAN, Warden, 15 No. 2:18-cv-00255 AC P FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. See ECF No. 1. Petitioner has not yet submitted an application to 19 proceed in forma pauperis or pay the filing fee. See ECF No. 4. Petitioner has sought to confirm 20 the court’s receipt of his consent to the jurisdiction of the undersigned magistrate judge, see ECF 21 Nos. 3 (consent) & 6 (letter confirming consent),1 and filed a motion for appointment of counsel, 22 see ECF No. 5. However, because the instant petition for writ of habeas corpus is the second 23 filed by petitioner challenging his 2012 conviction and sentence in the Butte County Superior 24 Court, this action must be dismissed without prejudice to its re-filing should petitioner obtain 25 authorization from the Ninth Circuit Court of Appeals. 26 1 27 28 Notwithstanding petitioner’s consent to proceed before the undersigned magistrate judge for all purposes, under 28 U.S.C. § 636(c), the recommended dismissal of this case is directed to the assigned district judge pursuant 28 U.S.C. § 636(b)(1). See Williams v. King, 875 F.3d 500 (9th Cir. 2017). 1 Dockets.Justia.com 1 The court’s records reveal that petitioner previously filed a petition for writ of habeas 2 corpus attacking the same conviction and sentence challenged in the instant case.2 The previous 3 petition was filed on March 30, 2016, and denied on the merits on March 20, 2018. See Ortiz v. 4 Baughman, Case No. 2:16-cv-00659 KJM CDK P. Before petitioner can proceed with the instant 5 petition, he must move in, and obtain from, the Ninth Circuit Court of Appeals, an order 6 authorizing the district court to consider the merits of his successive petition. See 28 U.S.C. 7 § 2244(b)(3). Absent such authorization, the instant petition must be dismissed without 8 prejudice. Id. 9 Accordingly, IT IS HEREBY ORDERED that: 10 1. This court’s order filed February 22, 2018, ECF No. 4, is vacated as unnecessary; 11 2. Petitioner’s request for appointment of counsel, ECF No. 5, is denied as moot; and 12 3. The Clerk of Court is directed to randomly assign a district judge to this action. 13 Further, IT IS HEREBY RECOMMENDED that this action be dismissed without 14 prejudice because premised on an unauthorized successive petition for writ of habeas corpus 15 under 28 U.S.C. § 2254. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, petitioner may file written 19 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 20 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 21 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 22 F.2d 1153 (9th Cir. 1991). 23 DATED: March 22, 2018 24 25 26 27 28 2 A court may take judicial notice of its own records and the records of other courts. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2