Peterson v. People of the State of California

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 05/23/13 granting 3 Motion to Proceed IFP and denying 4 Motion to Appoint Counsel. This action is dismissed without prejudice. CASE CLOSED. (Plummer, 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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PHILLIP ANTHONY PETERSON,
Petitioner,

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No. 2:13-cv-0860 KJN P

vs.
PEOPLE OF THE STATE OF
CALIFORNIA,
ORDER

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Respondent.
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Petitioner, a state prisoner proceeding without counsel, has filed an application for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in

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forma pauperis. Petitioner has consented to the jurisdiction of the undersigned.

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Examination of the in forma pauperis application reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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The court’s records reveal that petitioner previously filed an application for a writ

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of habeas corpus attacking the 1998 conviction and sentence challenged in this case. (Case No.

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2:02-CV-1720 FCD DAD P.) The previous application was filed on August 14, 2002, and was

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denied on the merits on September 21, 2006. Before petitioner can proceed with the instant
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application he must move in the United States Court of Appeals for the Ninth Circuit for an order

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authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore,

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

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authorization from the United States Court of Appeals for the Ninth Circuit.
Petitioner has filed a motion for the appointment of counsel. Because this action

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is dismissed, the motion for appointment of counsel is denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis (ECF No. 3) is granted;

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2. Petitioner’s motion for appointment of counsel (ECF No. 4) is denied;
3. This action is dismissed without prejudice.

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DATED: May 23, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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pet860.suc

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