Lewis v. Unknown

Filing 12

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/28/2015 VACATING the 8 findings and recommendations issued 1/5/2015; petitioner's 10 motion to proceed IFP is GRANTED; and RECOMMENDING that petitioner's 4 petition for writ of habeas corpus be dismissed without prejudice; and this case be closed. Referred to Judge John A. Mendez; 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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MYLVIN OTIS LEWIS,

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Petitioner,

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v.

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J. LIZARRAGA,

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No. 2:14-cv-2643 JAM CKD P

ORDER AND
FINDINGS AND RECOMMENDATIONS
Respondent.

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

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corpus under 28 U.S.C. ¶ 2254. On January 5, 2015, the court recommended that this action be

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dismissed because petitioner had not paid the filing fee or filed a request for leave to proceed in

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forma pauperis. Petitioner filed a motion for leave to proceed in forma pauperis on January 15,

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2015. Accordingly, the court’s findings and recommendations will be vacated.

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Examination of petitioner’s request for leave to proceed in forma pauperis reveals that

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petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma

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pauperis will be granted. See 28 U.S.C. § 1915(a).

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A review of the docket for case number 2:03-cv-2211 GEB EFB P reveals that petitioner

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challenged the convictions at issue in this action in that action as well. On March 23, 2010, the

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habeas petition in 2:03-cv-2211 GEB EFB P was denied. Before petitioner can proceed with the

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instant successive petition, he must obtain authorization from the Ninth Circuit Court of Appeals.
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28 U.S.C. § 2244(b)(3). It does not appear petitioner has obtained the required authorization.

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Therefore, petitioner’s habeas petition must be dismissed without prejudice to its re-filing upon

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petitioner obtaining the required authorization.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The court’s January 5, 2015 findings and recommendations are vacated; and

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2. Petitioner’s motion to proceed in forma pauperis (ECF No. 10) is granted.

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IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s petition for 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: January 28, 2015

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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