Briscoe v. Valenzuela

Filing 14

ORDER signed by Magistrate Judge Kendall J. Newman on 07/22/13 ordering the clerk of the court is directed to a) redesignate the undersigned's findings and recommendations filed on 06/24/13 10 as an order; and b) withdraw the assignment of a district judge to this action; and for the reasons stated in this court's order filed 06/24/13 10 this action is dismissed without prejudice. CASE CLOSED. (cc: KJM) (Plummer, M) Modified on 7/23/2013 (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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DARRYL LEE BRISCOE,
Petitioner,

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

vs.
E. VALENZUELA,
Respondent.

ORDER
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On June 24, 2013, the undersigned magistrate judge granted petitioner’s

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application to proceed in forma pauperis, and directed the assignment of a district judge to

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review the undersigned’s recommendation that this action be dismissed. (See ECF No. 10.) The

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court recommended dismissal because this action is premised on a successive application for writ

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of habeas corpus. As the court explained (id. at 1-2):

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The court’s records reveal that petitioner previously filed an
application for a writ of habeas corpus attacking the same
conviction and sentence challenged in the instant case. See
Briscoe v. Gonzales, Case No. 2:10-cv-02473 GGH P. The
previous application was filed on August 19, 2010, and denied on
the merits on September 24, 2012. The petition was denied as
untimely, and the action dismissed with prejudice; the court
determined that no certificate of appealability should issue.

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Because the claims asserted in the instant application appear to be
identical to those presented in petitioner’s prior application,
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dismissal of the instant petition is warranted. 28 U.S.C. §
2244(b)(1). To the extent that petitioner may be seeking to assert a
new claim, he must first obtain, from the Ninth Circuit Court of
Appeals, an order authorizing the district court to consider the
application. 28 U.S.C. § 2244(b)(2), (3). Therefore, on this
ground too, petitioner’s instant application must be dismissed.

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Petitioner thereafter filed a notice of consent to proceed pursuant to the

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jurisdiction of the undersigned magistrate judge for all purposes. 28 U.S.C. § 636(c); Local Rule

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305(a). (See ECF No. 11.) In addition, petitioner filed a notice of change of address; petitioner

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was previously incarcerated at the California Men’s Colony, but is now detained at Atascadero

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State Prison. (ECF No. 12.) Petitioner has filed no objections to the findings and

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recommendations, and there is no basis for modifying the undersigned’s prior conclusion that

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this action should be dismissed.

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For these reasons, and good cause appearing, IT IS HEREBY ORDERED that:

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1. The Clerk of Court is directed to: (a) redesignate the undersigned’s findings

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and recommendations filed on June 24, 2013 (ECF No. 10) as an order; and (b) withdraw the

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assignment of a district judge to this action; and
2. For the reasons stated in this court’s order filed June 24, 2013 (ECF No. 10),

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this action is dismissed without prejudice.

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DATED: July 22, 2013

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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bris1185.fin.ord

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