Lees v. Hedgepeth

Filing 9

ORDER signed by Magistrate Judge Dale A. Drozd on 10/15/2012 ORDERING that this action is DISMISSED without prejudice. CASE CLOSED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALEXANDER LEES,
Petitioner,

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vs.

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No. 2:11-cv-01422-DAD P

A. HEDGEPETH,

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Respondent.
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ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate Judge

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jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 3. Before the court is

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petitioner’s second amended petition.

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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 same 1989 Solano County Superior Court judgment of

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conviction and sentence which he seeks to challenge in this federal habeas proceeding. (See Lees

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v. Borg, Case No. 2:90-cv-01599-WBS-GGH P.) Petitioner’s previous federal habeas

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application was filed in this court on December 26, 1990, and was denied on the merits on

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January 13, 1993. In light of that prior action and ruling, before petitioner can proceed with the

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instant federal habeas application he must move in the United States Court of Appeals for the
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Ninth Circuit for an order authorizing the district court to consider the application. 28 U.S.C.

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§ 2244(b)(3). Therefore, petitioner’s second amended petition must be dismissed without

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prejudice to its refiling upon his obtaining authorization from the United States Court of Appeals

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for the Ninth Circuit.
In accordance with the above, IT IS HEREBY ORDERED that this action is

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dismissed without prejudice.

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DATED: October 15, 2012.

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DAD:4
lee1422.succ

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