Tyes v. Sherman

Filing 5

ORDER DISMISSING CASE signed by Magistrate Judge Gregory G. Hollows on 1/29/15. (Kaminski, H) (Main Document 5 replaced on 2/1/2016) (Kaminski, H).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARTHUR E. TYES,

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Petitioner,

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No. 2:15-cv-2655 GGH P

ORDER 1

v.
DANIEL PARAMO, Warden,

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Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee.
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. The previous

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application was filed on July 2, 2012, and was denied on the merits on October 2, 2013.2 See

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Tyes v. McEwen, No. 2:12-cv-1755 TLN DAD P. The current petition represents a successive

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challenge to the same 1993 conviction at issue in petitioner’s prior petition. Before petitioner can

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proceed with the instant application, he must move in the United States Court of Appeals for the

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Ninth Circuit for an order authorizing the district court to consider the application. 28 U.S.C. §

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Petitioner has consented to the undersigned as presiding judge pursuant to 28 U.S.C section 636
(c).
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The previous petition was dismissed as time barred which is a decision on the merits. See
McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009).
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2244(b)(3). Therefore, petitioner’s application must be dismissed without prejudice to its refiling

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

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Accordingly, IT IS HEREBY ORDERED that this action be dismissed without prejudice.
Dated: January 29, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/tyes2655.succ

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