Briscoe v. Valenzuela

Filing 10

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 6/21/13 ORDERING that Petitioners application to proceed in forma pauperis is granted; and the Clerk of Court is directed to randomly assign a district judge to this action. In addition, IT IS HEREBY RECOMMENDED that this action be dismissed. 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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DARRYL LEE BRISCOE,
Petitioner,

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Case No. 2:13-cv-01185 KJN P

vs.
E. VALENZUELA,

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 previously filed an application for a writ

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of habeas corpus attacking the same conviction and sentence challenged in the instant case. See

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Briscoe v. Gonzales, Case No. 2:10-cv-02473 GGH P. The previous application was filed on

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August 19, 2010, and denied on the merits on September 24, 2012. The petition was denied as

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untimely, and the action dismissed with prejudice; the court determined that no certificate of
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appealability should issue.
Because the claims asserted in the instant application appear to be identical to

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those presented in petitioner’s prior application, dismissal of the instant petition is warranted. 28

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U.S.C. § 2244(b)(1). To the extent that petitioner may be seeking to assert a new claim, he must

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first obtain, from the Ninth Circuit Court of Appeals, an order authorizing the district court to

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consider the application. 28 U.S.C. § 2244(b)(2), (3). Therefore, on this ground too, petitioner’s

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instant application must be dismissed.

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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 of Court is directed to randomly assign a district judge to this action.

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In addition, IT IS HEREBY RECOMMENDED that this action be dismissed.

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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: June 21, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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bris1185.succ.2254

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