Henderson v. Davey

Filing 10

ORDER signed by Magistrate Judge Kendall J. Newman on 3/9/15 ORDERING that Petitioners application to proceed in forma pauperis is granted; This action is dismissed without prejudice. CASE CLOSED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANCE K. HENDERSON,

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No. 2: 14-cv-2757 KJN P

Petitioner,

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v.

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DAVE DAVEY,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner consented to the jurisdiction of the undersigned.

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(ECF No. 3.)
On December 29, 2014, the undersigned ordered petitioner to either pay the filing fee or

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file an application to proceed in forma pauperis within thirty days. (ECF No. 5.) On February 3,

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2015, petitioner filed a copy of his trust account statement. (ECF No. 7.) The undersigned

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construes petitioner’s trust account statement to contain an application to proceed in forma

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pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See

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28 U.S.C. § 1915(a).

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In this action, petitioner challenges his 2004 conviction from the Sacramento County

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Superior Court. Court records indicate that petitioner has previously brought a habeas petition in

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this court challenging the same conviction, CIV No. 06-cv-2369 JAM CMK P.1 On October 15,

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2008, the court denied 06-2369, and the Ninth Circuit denied petitioner’s appeal on March 8,

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2010. Thus, in the instant case, petitioner is attempting to bring a second or successive petition.

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Before a second or successive petition is filed in the district court, the applicant is required

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to move in the appropriate court of appeals for an order authorizing the district court to consider

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the application. 28 U.S.C. § 2244(b)(3)(A). Here, petitioner has not obtained an order from the

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Ninth Circuit authorizing the district court to consider this second or successive petition.

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Petitioner cannot proceed with this action unless and until he obtains such an order from the

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Ninth Circuit. Accordingly, this action is dismissed without prejudice to its refiling with a copy

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of an order from the Ninth Circuit authorizing petitioner to file a second or successive petition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis is granted;

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2. This action is dismissed without prejudice.

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Dated: March 9, 2015

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Hen2757.56

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A court may take judicial notice of court records. See MGIC Indem. Co. v.Weisman, 803 F.2d
500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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