Starr v. Cano
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 03/17/16 granting 2 Motion to Proceed IFP. The clerk of the court randomly assign a United States District Judge to this action. 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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ROBIN GILLEN STARR,
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No. 2:16-cv-0510 KJN P
Petitioner,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
CANO,
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, together with a request to proceed in forma pauperis
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pursuant to 28 U.S.C. § 1915.
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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford
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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See
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28 U.S.C. § 1915(a).
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The court’s records reveal that petitioner previously filed an application for a writ of
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habeas corpus attacking the 2009 conviction and sentence challenged in this case. Starr v. State
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of California, No. 2:12-cv-0457 MCE KJN (E.D. Cal.). The previous application was dismissed
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on December 5, 2012 as untimely. Id., ECF No. 101. “[D]ismissal of a habeas petition as
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untimely constitutes a disposition on the merits and [ ] a further petition challenging the same
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conviction [is] ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).” McNabb v. Yates,
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576 F.3d 1028, 1029 (9th Cir. 2009); see also Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005)
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(dismissal of habeas petition as time barred constitutes an adjudication on the merits that renders
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future petitions under § 2254 challenging the same conviction ‘second or successive’ petitions
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under § 2244(b).”). Becauser petitioner challenges the same judgment now that he previously
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challenged and which was adjudicated on the merits, the petition now pending is second or
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successive.
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Before petitioner can proceed with the instant application, he must move in the United
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States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider
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the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed
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without prejudice to its re-filing upon obtaining authorization from the United States Court of
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Appeals for the Ninth Circuit.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is granted;
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2. The Clerk of the Court randomly assign a United States District Judge to this action.
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and
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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: March 17, 2016
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/star0510.succ
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