(HC) Proffitt v. Covello, No. 2:2020cv02433 - Document 8 (E.D. Cal. 2020)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/29/2020 DENYING as MOOT 3 Motion to Set Hearing; ORDERING Clerk to assign this case to a district judge; and RECOMMENDING this action be dismissed as a second or successive habeas application without prejudice to its refiling with a copy of an order from the 9th Circuit Court of Appeals authorizing petitioner to file a successive petition. Assigned and referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(HC) Proffitt v. Covello Doc. 8 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DANIEL PROFFITT, 12 13 14 15 No. 2:20-cv-02433 GGH P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS PATRICK COVELLO, Warden, 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 dismissal of the pending petition as second or successive. 21 Petitioner challenges his 2001 conviction in the Shasta County Superior Court for lewd 22 and lascivious acts with a minor child (Cal. Pen. Code § 288) and continuous sexual abuse of a 23 minor (Cal. Pen. Code § 288.5). ECF No. 1 at 1. The court’s records reveal that petitioner has 24 previously filed an application for a writ of habeas corpus attacking the conviction and sentence 25 challenged in this case. The previous application was filed on September 27, 2006 and was 26 dismissed as barred by the statute of limitations pursuant to 28 U.S.C. § 2244(d) on September 27 27, 2007. See Proffitt v. Campbell, 2:06-cv-02143-GEB-GGH, ECF Nos. 1, 101, 104, 105. 28 Before petitioner can proceed with the instant application, he must move in the United States 1 Dockets.Justia.com 1 Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the 2 application. See 28 U.S.C. § 2244(b)(3). Petitioner is again reminded that this court is not the 3 proper court to first request authorization to proceed on a second or successive habeas petition. 1 4 See Proffitt v. Lazarrag, 2:20-cv-00667-KJM-GGH, ECF Nos. 11 (On April 20, 2020, the 5 undersigned recommended dismissal of petitioner’s habeas petition as second or successive and 6 informed petitioner the procedures to proceed on a second or successive petition), 20 (adoption of 7 the undersigned’s April 20, 2020 findings and recommendations). Therefore, petitioner’s 8 application must be dismissed without prejudice to its re-filing upon obtaining authorization from 9 the United States Court of Appeals for the Ninth Circuit. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Petitioner’s motion to set hearing (ECF No. 3) is denied as moot; and 12 2. The Clerk of the Court shall assign this case to a district judge. 13 Further, IT IS HEREBY RECOMMENDED that this action be dismissed as a second or 14 successive habeas corpus application without prejudice to its refiling with a copy of an order from 15 the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, petitioner may file written 19 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 20 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 21 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 22 F.2d 1153 (9th Cir. 1991). 23 Dated: December 29, 2020 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 The undersigned notes that the pending habeas petition is also labeled as an “Application for Successive” petition. See ECF No. 1 at 1. 2
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