(HC) Thao v. Sherman, No. 2:2018cv03178 - Document 8 (E.D. Cal. 2019)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/20/2019 GRANTING petitioner's 6 application to proceed IFP and ORDERING the Clerk to randomly assign a District Judge to this action. IT IS RECOMMENDED that the 1 petition be dismissed as duplicative of Thao v. Sherman, No. 2:17-cv-2396 MCE AC P. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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(HC) Thao v. Sherman Doc. 8 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TOU CHRISTMAS THAO, 11 No. 2:18-cv-3178 AC P Petitioner, 12 v. 13 STU SHERMAN, 14 ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 15 Petitioner, a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 16 17 2254 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF 18 Nos. 6, 7. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 19 636(b)(1)(B) and Local Rule 302. For the reasons stated herein, the Court will grant petitioner leave to proceed in forma 20 21 pauperis. It will also recommend that this action be dismissed as duplicative of Thao v. Sherman, 22 No. 2:17-cv-2396 MCE AC P (“Sherman I”). 23 I. IN FORMA PAUPERIS APPLICATION Examination of the in forma pauperis application reveals that petitioner is unable to afford 24 25 the costs of suit. See ECF Nos. 6, 7. Accordingly, the application to proceed in forma pauperis 26 will be granted. See 28 U.S.C. § 1915(a). 27 //// 28 //// 1 Dockets.Justia.com 1 II. RECOMMENDATION TO DISMISS 2 In the instant petition, petitioner challenges his fifteen-year enhanced sentence for assault 3 with a firearm that was imposed in Sacramento County Superior Court Case No. 10F06846. See 4 ECF No. 1 at 2-3. A review of the Court’s records1 indicates that Sherman I is an earlier-filed 5 habeas petition pending in this Court, which contests the same sentence enhancement on the same 6 grounds. Compare ECF No. 1 at 1-3, with Sherman I, ECF No. 1 at 1-4. Because the instant 7 petition is a duplicate, the Court will recommend that it be dismissed as such. 8 9 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a District Court Judge to this action. 10 11 IT IS FURTHER RECOMMENDED that the petition (ECF No. 1) be DISMISSED as duplicative of Thao v. Sherman, No. 2:17-cv-2396 MCE AC P. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, petitioner may file written 15 objections with the Court. Such a document should be captioned “Objections to Magistrate 16 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 18 Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: November 20, 2019 20 21 22 23 24 25 26 27 28 1 A court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2
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