Stone v. Holland

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/9/13 ORDERING that Petitioners 2 application to proceed in forma pauperis is GRANTED; and the Clerk is directed to assign a district judge to this case. It is RECOMMENDED that this action be dismissed without prejudice. 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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AARON PARNELL STONE,
Petitioner,

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No. 2:13-cv-0518 GGH P

vs.
KIMBERLY HOLLAND,

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. (Stone v.

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Martel, CIV-10-3454 (KJM GGH P). The previous application was filed on December 27, 2010,

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and was denied on the merits (timeliness) on March 26, 2012. The court’s records reflect that

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since Stone v. Martel was decided, petitioner has filed two other petitions in this court
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challenging the same 2006 conviction. See Stone v. Cates, case no. 12-cv-2174 GEB GGH P

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(filed August 20, 2012 and dismissed without prejudice as successive on October 17, 2012);

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Stone v. Superior Court of California, County of Sacramento, case no. 12-cv-2986 AC (filed

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December 7, 2012 and dismissed without prejudice as successive on February 14, 2013).
The current petition represents a successive challenge to the same 2006 conviction

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at issue in each of petitioner’s prior petitions. Accordingly, before petitioner can proceed with

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the instant application he must move in the United States Court of Appeals for the Ninth Circuit

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for 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.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis is granted; and

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2. The Clerk is directed to assign a district judge to this case.

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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: April 9, 2013

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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ggh:076/ston0518.success.wpd

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