(HC) Herrera v. Davey, No. 2:2018cv03240 - Document 9 (E.D. Cal. 2019)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/19/2019 GRANTING 7 Motion to Proceed IFP and RECOMMENDING this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(HC) Herrera v. Davey Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERTO HERRERA, 12 13 14 15 No. 2:18-cv-03240 KJM GGH P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS D. DAVEY, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 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. 20 Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 21 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 22 28 U.S.C. § 1915(a). 23 The court’s records reveal that petitioner has previously filed an application for a writ of 24 habeas corpus attacking the conviction and sentence challenged in this case. The previous 25 application was filed on February 27, 2012, and was denied on the merits on April 1, 2016. See 26 Herrera v. Gipson, No. 2:12-CV-00508 DAD, 2016 WL 1267701 (E.D. Cal. Apr. 1, 2016). 27 Before petitioner can proceed with the instant application, he must move in the United States 28 Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the 1 Dockets.Justia.com 1 application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed 2 without prejudice to its re-filing upon obtaining authorization from the United States Court of 3 Appeals for the Ninth Circuit. 4 To the extent petitioner asserts that he is challenging the outcome of the previous federal 5 case by making a claim for ineffective assistance of counsel in the federal habeas proceedings, no 6 claim for ineffective assistance of counsel in collateral habeas proceedings exists. See 7 Wainwright v. Torna, 455 U.S. 586 (1982). Petitioner cannot simply try a backdoor method to 8 have the court review once again his previous state habeas claims. 9 10 In accordance with the above, IT IS HEREBY ORDERED that petitioner’s application to proceed in forma pauperis (ECF No. 7) is granted; and 11 IT IS RECOMMENDED that this action be dismissed without prejudice. 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. The document should be captioned “Objections to Magistrate Judge’s 16 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 17 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 18 F.2d 1153 (9th Cir. 1991). 19 Dated: March 19, 2019 20 21 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2
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