Starr v. State of California, et al

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 2/26/13 ORDERING that the Clerk randomly assign a district judge to this action; and IT IS HEREBY RECOMMENDED that this action be dismissed withoutprejudice. Randomly assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBIN STARR,
Petitioner,

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vs.
STATE OF CALIFORNIA, et al.,

ORDER AND

Respondents.

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

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No. 2:13-cv-0006 AC P

habeas corpus pursuant to 28 U.S.C. § 2254.

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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 conviction and sentence challenged in this case. The

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previous application was filed on January 10, 2012, and was denied on the merits on December

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5, 2012. See Starr v. State of California, No. 2:12-cv-0457 MCE KJN. Before petitioner can

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proceed with the instant 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 application must be dismissed without prejudice to its

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refiling upon obtaining authorization from the United States Court of Appeals for the Ninth

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Circuit.
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In accordance with the above, IT IS HEREBY ORDERED that the Clerk
randomly assign a district judge to this action; and

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IT IS HEREBY RECOMMENDED that this action be dismissed without
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 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: February 26, 2013.

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:rb

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star0006.success

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