Robinson v. Asuncion

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 05/18/16 granting 2 Motion to Proceed IFP. The clerk of the court shall randomly assign a district judge to this action. U.S. District Judge Troy L. Nunley randomly assigned to this action. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Troy L. Nunley. 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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CLARK ROBINSON,

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No. 2:16-cv-1012 GGH P

Petitioner,

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v.

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D. ASUNCION,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
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 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 August 5, 2010, and was denied on the merits on May 7, 2012. Before

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petitioner can proceed with the instant application, he must move in the United States Court of

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Appeals for the Ninth Circuit for an order authorizing the district court to consider the

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application. 28 U.S.C. § 2244(b)(3).1 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; and

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2. the Clerk of Court shall randomly assign a district judge to this action.

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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: May 18, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Robi1012.success

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Even though the instant petition raises new evidence and actual innocence, the Court of
Appeals must nevertheless review it. 28 U.S.C. 2244(b)(3).
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