Hatchett v. Gonzalez

Filing 8

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/14/2014 GRANTING petitioner's 6 application to proceed IFP; and RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Troy L. Nunley; 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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CECIL JEROME HATCHETT,

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No. 2:13-cv-2477 TLN KJN P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

GONZALEZ,
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. Pursuant to the court’s December 5, 2013 order, on January

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8, 2014, petitioner filed a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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

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habeas corpus attacking the conviction and sentence challenged in this case. Hatchett v. Lungren,

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Case No. 2:98-cv-0345 WBS JFM P. The previous application was filed on February 26, 1998,

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and was denied on the merits on October 6, 2003. 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 re-filing upon obtaining

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authorization from the United States Court of Appeals for the Ninth Circuit.1
In accordance with the above, IT IS HEREBY ORDERED that petitioner’s application to

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proceed in forma pauperis (ECF No. 6) is granted; and

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IT IS RECOMMENDED that 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: February 14, 2014

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/hatc2477.suc

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The Ninth Circuit previously denied petitioner leave to proceed with a successive petition on
November 2, 2004, in Case No. 04-73928. Moreover, on October 22, 2013, this court dismissed
without prejudice, because successive, another habeas petition filed by petitioner. See Hatchett v.
Gonzales, Case No. 2:12-cv-02228 MCE DAD P.
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