Parvin v. Walker
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 8/10/2012, ORDERING that petitioner's 1 request to proceed IFP is GRANTED; and RECOMMENDING that this action be dismissed without prejudice. Referred to Judge William B. Shubb; Objections due within 21 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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JOHN ALAN PARVIN,
Petitioner,
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No. 2:12-cv-1013 WBS CKD P
vs.
JAMES WALKER,
Respondent.
ORDER AND
/
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254 along with an application to proceed in forma
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pauperis. Petitioner has submitted a declaration that makes the showing required by 28 U.S.C.
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§ 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
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Court records for case number 2:09-cv-2198 JFM P reveal that petitioner
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previously filed a petition for a writ of habeas corpus attacking the convictions and sentences
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challenged in this case. The previous petition was filed on August 10, 2009, and was dismissed
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as time-barred on March 1, 2010. Before petitioner can proceed with the instant successive
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petition, he must obtain authorization from the Ninth Circuit Court of Appeals. 28 U.S.C.
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§ 2244(b)(3); see Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of habeas petition
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as time barred “constitutes an adjudication on the merits that renders future petitions under §
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2254 challenging the same conviction ‘second or successive’ petitions under [28 U.S.C.§
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2244(b)]).” Therefore, petitioner’s habeas petition must be dismissed without prejudice to its
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refiling upon obtaining the required authorization.
Accordingly, IT IS HEREBY ORDERED that petitioner’s request for leave to
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proceed in forma pauperis is granted; and
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: August 10, 2012
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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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