Molen v. Graber

Filing 16

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 04/06/16 ORDERING that all outstanding motions 13 , 14 , 15 are denied. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES O. MOLEN,

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Petitioner,

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No. 2:15-cv-2141 KJM CKD P

v.

ORDER AND

CONRAD M. GRABER,

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FINDINGS AND RECOMMENDATIONS

Respondent.

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On November 6, 2015, petitioner was ordered to file a request to proceed in forma

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pauperis or pay the $5.00 filing fee for the action within thirty days. Petitioner was warned that

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failure to do so would result in a recommendation that this action be dismissed. Petitioner has

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neither filed a request to proceed in forma pauperis nor paid the filing fee.
Furthermore, petitioner fails to state any valid basis for relief. While it is not entirely

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clear, it appears that petitioner is seeking a writ of habeas corpus on the ground that the district

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court judge in his criminal action, 2:12-cr-0252 TLN, did not have subject matter jurisdiction to

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sentence petitioner. If that is petitioner’s claim, petitioner would have to file a motion in his

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criminal case pursuant to 28 U.S.C. § 2255, not initiate a separate action as he has done here. See

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Porter v. Adams, 244 F.3d 1006 (9th Cir. 2001).

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In accordance with the above, IT IS HEREBY ORDERED that all outstanding motions
(ECF Nos. 13-15) are denied; and

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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: April 6, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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mole2141.dis

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