(HC) Smith v. Diaz, No. 2:2020cv00584 - Document 5 (E.D. Cal. 2020)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/1/2020 ORDERING Clerk to randomly assign a district judge to this action and RECOMMENDING this action be dismissed as a second or successive habeas corpus app lication without prejudice to its refiling 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 John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(HC) Smith v. Diaz Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOVON SMITH, 12 No. 2:20-cv-00584 GGH P Petitioner, 13 v. 14 RALPH DIAZ, 15 ORDER AND FINDINGS AND RECOMMENDATIONS 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. Petitioner has not, however, filed an in forma pauperis 19 affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Nevertheless, 20 the undersigned will recommend this action be dismissed as a second or successive habeas corpus 21 application. 22 Petitioner challenges his 2009 conviction in the Solano County Superior Court for assault 23 on a child causing death. ECF No. 1. The court’s records reveal that petitioner has previously 24 filed an application for a writ of habeas corpus attacking the conviction and sentence challenged 25 in this case. The previous application was filed on December 13, 2011 and was denied on the 26 merits on January 14, 2014. See Smith v. Ken Clark, 2:11-cv-03312-MCE-GGH. Before 27 petitioner can proceed with the instant application, he must move in the United States Court of 28 Appeals for the Ninth Circuit for an order authorizing the district court to consider the 1 Dockets.Justia.com 1 application. See 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 5 6 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a district judge to this action. Further, IT IS HEREBY RECOMMENDED that this action be dismissed as a second or 7 successive habeas corpus application without prejudice to its refiling with a copy of an order from 8 the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, petitioner may file written 12 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 13 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 14 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 15 F.2d 1153 (9th Cir. 1991). 16 Dated: April 1, 2020 17 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2
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