Glica v. Beard

Filing 6

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/6/14 RECOMMENDING that 1 Petition for Writ of Habeas Corpus be dismissed without prejudice; and this case be closed. Randomly assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES GLICA,

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No. 2:14-cv-0551 CKD P
Petitioner,

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v.

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BEARD,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Respondent.

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Petitioner is a California prisoner proceeding pro se with a petition for writ of habeas

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corpus under 28 U.S.C. § 2254. He challenges 2001 Sacramento County convictions for, among

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other things, first degree murder.
A review of the docket for case number 2:11-cv-3247 GEB GGH P reveals that petitioner

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challenged the convictions at issue in this action in that action as well. On May 10, 2012, the

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habeas petition in 2:11-cv-3247 GEB GGH P was dismissed as time-barred. Before petitioner

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can proceed with the instant successive petition, he must obtain authorization from the Ninth

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Circuit Court of Appeals. 28 U.S.C. § 2244(b)(3); see Murray v. Greiner, 394 F.3d 78, 81 (2d

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Cir. 2005) (dismissal of habeas petition as time-barred “constitutes an adjudication on the merits

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that renders future petitions under § 2254 challenging the same conviction „second or successive‟

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petitions under [28 U.S.C.§ 2244(b)]”). It does not appear petitioner has obtained the required

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authorization. Therefore, petitioner‟s habeas petition must be dismissed without prejudice to its

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re-filing upon petitioner obtaining the required authorization.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district
court judge to this case.

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IT IS HEREBY RECOMMENDED that

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1. Petitioner‟s application for a writ of habeas corpus be dismissed without prejudice; and

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2. This case be closed.

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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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge‟s Findings and Recommendations.” In his objections petitioner

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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

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court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant). Petitioner is advised that failure to file objections within the specified time may waive

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the right to appeal the District Court‟s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 6, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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1/kly
glic0551.suc

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