Nevarez v. Scribner

Filing 10

[F&R VACATED PURSUANT TO 14 ORDER] ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 4/15/09 ORDERING that the 2 application to proceed IFP is GRANTED; the 3 motion to appoint counsel is DENIED without prejudice; the 6 motion for a copy of transcripts is DENIED without prejudice; RECOMMENDING that 1 this action be dismissed without prejudice. Objections due within 20 days. (Gaydosh, J) Modified on 6/17/2009 (Yin, K).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. A.K. SCRIBNER, Respondent. / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a). The instant petition was filed with the court on March 24, 2009. The court's own records reveal that on December 29, 1998, petitioner filed a petition challenging the same ///// ///// 1 ORDER AND FINDINGS & RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UVALDO NEVAREZ, Petitioner, No. 2:09-cv-0829 FCD JFM P

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conviction1 challenged herein. (No. 2:98-cv-2452 GEB JFM P).2 Due to the duplicative nature of the present action, the court will recommend that the instant petition be dismissed. Moreover, to the extent petitioner is attempting to raise new claims not included in his prior petition, before petitioner can proceed with an application raising new claims, he must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Petitioner cannot refile a challenge to the underlying conviction without first obtaining authorization from the United States Court of Appeals for the Ninth Circuit. Petitioner has also filed a motion for appointment of counsel and for a copy of transcripts. In light of the recommended dismissal, petitioner's motions will be denied without prejudice. In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner's request to proceed in forma pauperis is granted; 2. Petitioner's March 24, 2009 motion for appointment of counsel is denied without prejudice; and 3. Petitioner's April 9, 2009 motion for a copy of transcripts is denied without prejudice. IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). These findings and recommendations are submitted to the District Judge assigned to this case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being

Although the instant petition states petitioner was convicted in 1993, and the previous application states he was convicted in 1994, both petitions challenge his conviction for one count of second degree murder and four counts of attempted second degree murder. Both petitions reference the California Supreme Court's July 26, 1995 denial of his petition for review. A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2
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served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: April 15, 2009.

/001; neva0829.23

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