Brownlee v. Rommoro

Filing 12

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/18/2014 ORDERING that petitioner's application to proceed in forma pauperis is GRANTED. IT IS HEREBY RECOMMENDED that this action be dismissed. Referred to Judge Kimberly J. Mueller. Objections to F&R due within 14 days. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERRENCE BROWNLEE, 12 Petitioner, 13 14 No. 2: 14-cv-1249 KJM KJN P v. ORDER and FINDINGS & RECOMMENDATIONS LYDIA ROMMORO, 15 Respondent. 16 Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma 19 pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford 20 21 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 22 28 U.S.C. § 1915(a). 23 For the following reasons, the undersigned recommends that this action be dismissed. 24 In the June 27, 2014 amended petition, petitioner alleges that in 1980 he entered a plea 25 bargain in Fresno Superior Court pursuant to which he was sentenced to fifteen years 26 imprisonment and five years parole. (ECF No. 8.) Petitioner alleges that his plea bargain has 27 since been violated because he is being treated as if he was sentenced to fifteen years to life. (Id.) 28 //// 1 1 Court records reveal that petitioner has filed several petitions containing the same claim as 2 raised in the instant petition or slightly altered variations. See 1: 05-cv-0949 REC SMS P, 1: 06- 3 cv-0320 OWW SMS P, 1: 09-cv-0765 OWW SMS P, 2: 10-cv-0925 LKK KJM P, 2: 10-cv-3478 4 GGH P. All of these petitions were denied as successive or as time barred.1 5 Before petitioner can proceed with the instant application, he must move in the United 6 States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider 7 the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed 8 without prejudice to its refiling upon obtaining authorization from the United States Court of 9 Appeals for the Ninth Circuit. Accordingly, IT IS HEREBY ORDERED that petitioner’s application to proceed in forma 10 11 pauperis is granted; and 12 IT IS HEREBY RECOMMENDED that this action be dismissed. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, petitioner may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 18 he shall also address whether a certificate of appealability should issue and, if so, why and as to 19 which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 20 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 21 //// 22 //// 23 //// 24 1 25 26 27 28 In his March 21, 2011 order dismissing petitioner’s action, Magistrate Judge Hollows observed that in that case, petitioner alleged that he pled guilty to a 15 year sentence, not a life sentence. See 2: 10-cv-3478 GGH P, ECF No. 14 at 2. “However, in his earlier petitions, petitioner indicated that he pled guilty to an indeterminate sentence of 17 years to life.” (Id.) “In those earlier petitions, he attacked the underlying plea while in the later petitions he began attacking the length of his incarceration being longer than the alleged plea.” (Id.) “It appears that petitioner is not being candid with the court.” (Id.) 2 1 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may 2 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 3 1991). 4 Dated: July 18, 2014 5 6 Br1249.dis 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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