Smith v. Foulk

Filing 4

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/21/2013 GRANTING petitioner's 2 application to proceed IFP; DIRECTING the Clerk to randomly assign a district judge to this action; and RECOMMENDING that this action be dismissed without prejudice. Assigned and Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES R. SMITH,

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Petitioner,

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No. 2:13-cv-02387-KJN P

V.

ORDER and

FRED FOULK, Warden,1

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FINDINGS AND RECOMMENDATIONS

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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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.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See

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28 U.S.C. § 1915(a).

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High Desert State Prison Error! Main Document Only.Warden Fred Foulk is substituted as
respondent herein. Petitioner improperly named as respondent the “People of the State of
California.” A federal petition for writ of habeas corpus must name as respondent the state
officer having custody of petitioner. See 28 U.S.C. § 2254; Rule 2(a), Rules Governing Section
2254 Cases in the United States District Courts; Smith v. Idaho, 392 F.3d 350, 354-55 (9th Cir.
2004); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

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The court’s records reveal that petitioner filed a prior federal petition for writ of habeas

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corpus attacking the conviction and sentence challenged in the instant case. See Smith v.

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McDonald, Case No. 2:09-cv-02967-MCE-GGH P. The previous petition was filed on October

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23, 2009, and was denied on the merits by orders filed April 9, 2012, and March 8, 2013. (Id.,

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ECF Nos. 51, 55.)

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Before petitioner can proceed with the instant petition, he must obtain leave from the

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Ninth Circuit Court of Appeals, authorizing the district court to consider the petition. 28 U.S.C. §

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2244(b)(3). Therefore, the instant petition must be dismissed without prejudice to its refiling

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should petitioner obtain such 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. 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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Further, IT IS HEREBY RECOMMENDED that:

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1. This action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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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: November 21, 2013

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/smit2387.success

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