Rodriguez v. Swarthout

Filing 3

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/9/14 ORDERING that the Clerk of Court is directed to assign a district judge to this action; RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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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 NAHU RODRIGUEZ, 12 Petitioner, 13 14 No. 2:14-cv-1803 CKD P v. ORDER AND GARY SWARTHOUT, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner, a state prisoner proceeding with counsel, has filed an application for a writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. (ECF No. 1.) The court’s records reveal, and petitioner acknowledges, that petitioner has previously 19 20 filed an application for a writ of habeas corpus attacking the conviction and sentence challenged 21 in this case. See Case No. 1:98-cv-6098 REC LJO (E.D. Cal.). The previous application was 22 filed on September 28, 1998, and was denied on the merits on January 22, 2001. Before 23 petitioner can proceed with the instant application, he must move in the United States Court of 24 Appeals for the Ninth Circuit for an order authorizing the district court to consider the 25 application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed 26 without prejudice to its refiling upon obtaining authorization from the United States Court of 27 Appeals for the Ninth Circuit. 28 //// 1 1 2 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is directed to assign a district judge to this action. 3 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, petitioner may file written 7 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 8 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 9 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 10 F.2d 1153 (9th Cir. 1991). 11 Dated: September 9, 2014 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 2 / rodr1803.success_fr 17 18 19 20 21 22 23 24 25 26 27 28 2

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