Baker v. Virga
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/21/11: IT IS HEREBY ORDERED that: 7 MOTION to proceed in forma pauperis is granted; The Clerk of the Court is directed to assign a district judge to this case; 4 MOTION for application of equitable tolling is denied without prejudice. IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. Objections to F&R due within twenty-one days. (Kaminski, H)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TIMOTHY RAY BAKER,
Petitioner,
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No. 2:11-cv-1317 KJN P
vs.
TIM VIRGA, Warden,
ORDER AND
Respondents.
FINDINGS & RECOMMENDATIONS
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Petitioner, a state prisoner proceeding without counsel, has filed an application for
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a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma
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pauperis pursuant to 28 U.S.C. § 1915.
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Examination of the in forma pauperis affidavit reveals that petitioner is unable to
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afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is
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granted. See 28 U.S.C. § 1915(a).
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The court’s records reveal that petitioner has previously filed an application for a
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writ of habeas corpus attacking the 1997 conviction and sentence challenged in this case. The
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previous application was filed on November 24, 2003, and was dismissed as barred by the statute
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of limitations on June 25, 2004. Baker v. LaMarque, Case No. 2:03-cv-2441 GEB GGH P.
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Before petitioner can proceed with the instant application he must move in the United States
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Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the
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application. 28 U.S.C. § 2244(b)(3). “[D]ismissal of a section 2254 habeas petition for failure to
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comply with the statute of limitations renders subsequent petitions second or successive for
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purposes of the AEDPA, 28 U.S.C. § 2244(b).” McNabb v. Yates, 576 F.3d 1028 (9th Cir.
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2009). Therefore, petitioner’s application must be dismissed without prejudice to its refiling
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upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit.
In light of this recommendation, petitioner’s May 16, 2011 motion for application
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of equitable tolling is denied without prejudice.
In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s application to proceed in forma pauperis is granted;
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2. The Clerk of the Court is directed to assign a district judge to this case;
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3. Petitioner’s May 16, 2011 motion for application of equitable tolling (dkt. no.
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4) is denied without prejudice.
IT IS HEREBY RECOMMENDED that this action be dismissed without
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prejudice.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-
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one days after being served with these findings and recommendations, petitioner may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge's
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Findings and Recommendations.” Petitioner is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: June 21, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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bake1317.156
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