Smith v. Foulk

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 12/18/2013 ORDERING the Clerk shall (a) redesignate the 11/21/2013 findings and recommendations (ECF No. 4 ) as an Order, and (b) withdraw the assignment of a district judge in this action; for the reasons stated in this court's 11/21/2013 order, this action is DISMISSED without prejudice; and the court DECLINES to issue the certificate of appealability referenced in 28 U.S.C. § 2253. CASE CLOSED. (cc: KJM)(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CHARLES R. SMITH,

12
13
14
15

No. 13-cv-2387-KJN-P

Petitioner,
v.

ORDER

FRED FOULK, Warden,
Respondent.

16
17

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

18

corpus pursuant to 28 U.S.C. § 2254. On November 21, 2013, the undersigned granted

19

petitioner’s request to proceed in forma pauperis and recommended dismissal of this action

20

without prejudice. (ECF No. 4.) As the court explained (id. at 2):

21
22
23
24
25
26
27
28

The court’s records reveal that petitioner filed a prior federal
petition for writ of habeas corpus attacking the conviction and
sentence challenged in the instant case. See Smith v. McDonald,
Case No. 2:09-cv-02967-MCE-GGH P. The previous petition was
filed on October 23, 2009, and was denied on the merits by orders
filed April 9, 2012, and March 8, 2013. (Id., ECF Nos. 51, 55.)
Before petitioner can proceed with the instant petition, he
must obtain leave from the Ninth Circuit Court of Appeals,
authorizing the district court to consider the petition. 28 U.S.C. §
2244(b)(3). Therefore, the instant petition must be dismissed
without prejudice to its refiling should petitioner obtain such
authorization from the United States Court of Appeals for the Ninth
Circuit.
1

1

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

2

undersigned magistrate judge for all purposes. (ECF No. 5.) 28 U.S.C. § 636(c); Local Rule

3

305(a). Petitioner did not file objections to the findings and recommendations, and there is no

4

basis for modifying the undersigned’s prior conclusion that this action should be dismissed.

5

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

6

1. The Clerk of Court shall: (a) redesignate the undersigned’s findings and

7

recommendations filed November 21, 2013 (ECF No. 4) as an Order; and (b) withdraw the

8

assignment of a district judge in this action;
2. For the reasons stated in this court’s order filed November 21, 2013, this action is

9
10

dismissed without prejudice; and

11
12
13
14

3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. §
2253.
SO ORDERED.
Dated: December 18, 2013

15
16

/smit2387.kjnjo

17
18
19
20
21
22
23
24
25
26
27
28
2