Moore v. Singh

Filing 7

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/11/2012 ORDERING that petitioner's 6 application to proceed IFP is GRANTED; and RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections due within 14 days.(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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THOMAS EUGENE MOORE,
Petitioner,

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No. 2:12-cv-0805 MCE KJN P

Respondent.

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FINDINGS & RECOMMENDATIONS

vs.
V. SINGH,

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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. On April 20, 2012, petitioner filed a request to

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proceed in forma 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 2000 conviction and sentence challenged in this case. The

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previous application was filed on January 3, 2002, and was denied on the merits on April 1,

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2011. Moore v. Lamarque, 2:02-cv-0007 JAM DAD P. Before petitioner can proceed with the

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instant application he must move in the United States Court of Appeals for the Ninth Circuit for
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an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3).

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Therefore, petitioner’s application must be dismissed without prejudice to its refiling upon

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obtaining authorization from the United States Court of Appeals for the Ninth Circuit.
In accordance with the above, IT IS HEREBY ORDERED that petitioner’s

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application to proceed in forma pauperis is granted; and
IT IS HEREBY RECOMMENDED that this action be dismissed without

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prejudice.
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 fourteen

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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: May 11, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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thom0805.suc

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