(HC) Proffitt v. Lazarrag, No. 2:2020cv00667 - Document 11 (E.D. Cal. 2020)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/20/2020 GRANTING 2 Application to Proceed IFP; DENYING as duplicative 6 Second Application to Proceed IFP; DENYING as moot 3 Motion to Appoint Counsel an d 8 Motion to Attend Oral Argument; ORDERING Clerk to assign this case to a district judge; and RECOMMENDING this action be dismissed as second or successive habeas application without prejudice to refiling with a copy of an order from the 9th Circuit authorizing Petitioner to file a successive petition. Assigned and 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) Proffitt v. Lazarrag Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY PROFFITT, 12 Petitioner, 13 14 No. 2:20-cv-00667 GGH P v. ORDER AND FINDINGS AND RECOMMENDATIONS JOE LAZARRAG, Warden, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 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. 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 (ECF No. 2) is 22 granted. See 28 U.S.C. § 1915(a). Petitioner’s second request to proceed in forma pauperis (ECF 23 No. 6) will be denied as duplicative. Petitioner challenges his 2001 conviction in the Shasta County Superior Court for charges 24 25 pursuant to Cal. Penal Code § 288 (lewd and lascivious acts with a minor child) and § 288.5 26 (continuous sexual abuse of a minor). ECF No. 1. The court’s records reveal that petitioner has 27 previously filed an application for a writ of habeas corpus attacking the conviction and sentence 28 //// 1 Dockets.Justia.com 1 challenged in this case. 1 The previous application was filed on September 27, 2006 and was 2 dismissed as barred by the statute of limitations pursuant to 28 U.S.C. § 2244(d) on September 3 27, 2007. See Proffitt v. Campbell, 2:06-cv-02143-GEB-GGH, ECF Nos. 1, 101, 104, 105. 4 Before petitioner can proceed with the instant application, he must move in the United States 5 Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the 6 application. See 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed 7 without prejudice to its re-filing upon obtaining authorization from the United States Court of 8 Appeals for the Ninth Circuit. 9 Due to the court’s recommendation that petitioner’s federal habeas petition be dismissed 10 as second or successive, petitioner’s motion to appoint counsel (ECF No. 3) and motion to attend 11 oral argument (ECF No. 8) are denied as moot. 12 In accordance with the above, IT IS HEREBY ORDERED that: 13 1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is GRANTED; 14 2. Petitioner’s second application to proceed in forma pauperis (ECF No. 6) is DENIED 15 as duplicative; 16 17 3. Petitioner’s motion to appoint counsel (ECF No. 3) and motion to attend oral argument (ECF No. 8) are DENIED as moot; and 18 4. The Clerk of the Court shall assign this case to a district judge. 19 Further, IT IS HEREBY RECOMMENDED that this action be dismissed as a second or 20 successive habeas corpus application without prejudice to its refiling with a copy of an order from 21 the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, petitioner may file written 25 //// 26 //// 27 1 28 The court may take judicial notice of court records in other cases. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004). 2 1 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 3 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 4 F.2d 1153 (9th Cir. 1991). 5 Dated: April 20, 2020 6 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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