(HC) Knapp v. Diaz, No. 2:2019cv02066 - Document 6 (E.D. Cal. 2019)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/04/19 GRANTING 2 Motion to Proceed IFP. The clerk of the court shall assign this case to a district judge. Also, RECOMMENDING that this action be dismissed as a second or successive habeas corpus application without prejudice to its refling with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition. Assigned and referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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(HC) Knapp v. Diaz Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC CHARLES RODNEY KNAPP, 12 13 14 15 No. 2:19-cv-02066 GGH P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS RALPH DIAZ, CDCR Secretary, 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 Petitioner challenges his 1993 conviction in the Sacramento County Superior Court in 24 Case No. CR 118548 for multiple counts of forcible acts of sexual penetration, battery, assault 25 with a deadly weapon, rape, and oral copulation, and one count of burglary. ECF No. 1 at 1. The 26 court’s records reveal that petitioner has previously filed an application for a writ of habeas 27 corpus attacking the conviction and sentence challenged in this case. The previous application 28 was filed on March 21, 2008 and was denied on the merits on September 26, 2011. See Knapp v. 1 Dockets.Justia.com 1 Warden of Salinas Valley State Prison, 2:08-cv-1040 JFM. Moreover, this appears to be 2 petitioner’s second successive petition. See Knapp v. Unknown, 2:16-cv-2900 JAM CFK. 1 As 3 petitioner was informed previously, before he can proceed with the instant application, he must 4 move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the 5 district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s 6 application must be dismissed without prejudice to its re-filing upon obtaining authorization from 7 the United States Court of Appeals for the Ninth Circuit. 8 In accordance with the above, IT IS HEREBY ORDERED that: 9 1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is granted; and 10 2. The Clerk of the Court shall assign this case to a district judge. 11 Further, IT IS HEREBY RECOMMENDED that this action be dismissed as a second or 12 successive habeas corpus application without prejudice to its refiling with a copy of an order from 13 the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, petitioner may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 19 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 20 F.2d 1153 (9th Cir. 1991). 21 Dated: November 4, 2019 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 Petitioner had also filed a separate petition for writ of habeas corpus challenging his 1993 conviction on December 9, 2016, however, this case was dismissed for failure to timely amend his petition. Knapp v. Unknown, 2:16-cv-2983 JAM CKD. 2

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