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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NAHU RODRIGUEZ,

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Petitioner,

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No. 2:14-cv-1803 CKD P

v.

ORDER AND

GARY SWARTHOUT,

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FINDINGS AND RECOMMENDATIONS

Respondent.

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Petitioner, a state prisoner proceeding with counsel, has filed an application for a writ of

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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

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filed an application for a writ of habeas corpus attacking the conviction and sentence challenged

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in this case. See Case No. 1:98-cv-6098 REC LJO (E.D. Cal.). The previous application was

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filed on September 28, 1998, and was denied on the merits on January 22, 2001. Before

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petitioner can proceed with the instant application, he must move in the United States Court of

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Appeals for the Ninth Circuit for an order authorizing the district court to consider the

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application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed

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without prejudice to its refiling upon obtaining authorization from the United States Court of

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Appeals for the Ninth Circuit.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court is directed to assign a
district judge to this action.

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IT IS HEREBY 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: September 9, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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