Moore v. Chappell

Filing 10

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 2/6/13 ORDERING that the Clerk of the Court is directed to assign this action to a United States District Judge; Petitioners application to proceed in forma pauperis is GRANTED; and RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Lawrence K. Karlton; 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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THOMAS EUGENE MOORE,
Petitioner,

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No. 2:13-cv-0182 JFM P

vs.
K. CHAPPELL, Warden,

ORDER AND

Respondent.

FINDINGS & RECOMMENDATIONS
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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 together with a request to proceed in forma pauperis

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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 conviction and sentence challenged in this case. See Case

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No. 2:02-cv-0007 JAM DAD P. The previous application was filed on January 3, 2002, and was

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denied on the merits on April 1, 2011. On November 8, 2012, the United States Court of

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Appeals denied petitioner’s request for certificate of appealability. Before petitioner can proceed
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with the instant application he must move in the United States Court of Appeals for the Ninth

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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:

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1. The Clerk of the Court is directed to assign this action to a United States

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District Judge;
2. Petitioner’s application to proceed in forma pauperis is granted; and

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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: February 6, 2013.

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