(HC) Ortiz v. Kernan, No. 2:2019cv00407 - Document 14 (E.D. Cal. 2019)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 03/11/19 GRANTING 8 Motion to Proceed IFP. The clerk of court is directed to assign a District Judge to this case. Also, RECOMMENDING that this action be dismissed without prejudice. Assigned and referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TRAVIS M. ORTIZ, 12 No. 2:19-cv-0407 KJN P Petitioner, 13 v. 14 ORDER AND FINDINGS AND RECOMMENDATIONS DAVID BAUGHMAN, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an amended application for a writ 17 18 of habeas corpus pursuant to 28 U.S.C. § 2254,1 together with a request to proceed in forma 19 pauperis pursuant to 28 U.S.C. § 1915. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 20 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 2012 conviction and sentence challenged in this case. The previous 25 application was filed on March 30, 2016, and was denied on the merits on March 20, 2018. See 26 27 28 Petitioner’s original petition was filed in the United States District Court for the Northern District of Texas, which transferred the action to this court on March 4, 2019, because petitioner was convicted and is housed in the Eastern District of California. (ECF Nos. 9, 10.) 1 1 1 Ortiz v. Baughman, Case No. 2:16-cv-0659 KJM CKD P (E.D. Cal.). Before petitioner can 2 proceed with the instant application, he must move in the United States Court of Appeals for the 3 Ninth Circuit for an order authorizing the district court to consider the application. 28 U.S.C. 4 § 2244(b)(3). Therefore, petitioner’s application must be dismissed without prejudice to its re- 5 filing upon obtaining authorization from the United States Court of Appeals for the Ninth 6 Circuit.2 In other words, petitioner must obtain authorization from the Ninth Circuit before he 7 can re-file a petition for writ of habeas corpus attacking the 2012 conviction. Petitioner claims 8 that his request for permission to file a second or successive petition is pending in the Ninth 9 Circuit Court of Appeals (ECF No. 7 at 8), but he does not state that his request has been granted 10 or provide a copy of an order granting such permission by the Ninth Circuit. 11 In accordance with the above, IT IS HEREBY ORDERED that: 12 1. Petitioner’s application to proceed in forma pauperis (ECF No. 8) is granted; 13 2. The Clerk of the Court is directed to assign a district judge to this case; and 14 IT IS RECOMMENDED that this action be dismissed without prejudice. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, petitioner may file written 18 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 19 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 20 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 21 F.2d 1153 (9th Cir. 1991). 22 Dated: March 11, 2019 23 24 /orti0407.succ 25 26 27 28 2 Petitioner filed another challenge to his 2012 conviction in Ortiz v. California Attorney General, Case No. 2:18-cv-1563 MCE DB P (E.D. Cal.), which was dismissed on January 2, 2019, because it was also premised on an unauthorized successive petition for writ of habeas corpus. Id. (ECF No. 33.) 2

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