Moss v. Mitchell

Filing 6

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/22/15 ORDERING that the clerk of the court randomly assign a United States District Judge to this action; RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Troy L. Nunley; 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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GREGORY A. MOSS,

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No. 2:15-cv-0108 GGH P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

KELI MITCHELL,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

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The court’s records reveal that petitioner has previously filed an application for a writ of

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habeas corpus attacking the conviction and sentence challenged in this case. Moss v. California

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Dept. of Corrections, 2:10-cv-2128 GEB CHS P. The previous application was filed on April 5,

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2010, and was denied on the merits on June 14, 2012. Before petitioner can proceed with the

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instant application, he must move in the United States Court of Appeals for the Ninth Circuit for

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an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3).

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

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obtaining authorization from the United States Court of Appeals for the Ninth Circuit.

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Accordingly, IT IS HEREBY ORDERED that the clerk of the court randomly assign a
United States District Judge to this action.
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Accordingly, IT IS 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: January 22, 2015

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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Moss0108.succ

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