Howell v. Beckley

Filing 15

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/13/2016 ORDERING that the 8 findings and recommendations are VACATED. Petitioner's 10 Motion to Proceed IFP is GRANTED. IT IS HEREBY RECOMMENDED that petitioner's application for writ of habeas corpus be dismissed without prejudice. Referred to Judge Garland E. Burrell Jr. Objections to F&R due within 14 days. (Zignago, K.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PRESTON ALONZO HOWELL, 12 Petitioner, 13 14 No. 2:16-cv-1812 GEB CKD P v. ORDER AND RONALD A. BECKLEY, 15 FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254. On September 16, 2016, the court recommended that this 19 action be dismissed for petitioner’s failure to file a completed application to proceed in forma 20 pauperis. A completed application to proceed in forma pauperis has now been filed by petitioner. 21 Therefore, the court will vacate the September 16, 2016 findings and recommendations. Examination of petitioner’s request to proceed in forma pauperis reveals that petitioner is 22 23 unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis 24 will be granted. See 28 U.S.C. § 1915(a). 25 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 26 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 27 petitioner is not entitled to relief. The court has conducted that review. 28 ///// 1 1 A review of court records reveals petitioner has already challenged the convictions and 2 sentences at issue in this action in 2:02-cv-1376 GEB JFM P. Therefore, before petitioner can 3 proceed with the instant successive petition,1 he must obtain authorization from the United States 4 Court of Appeals for the Ninth Circuit pursuant to 28 U.S.C. § 2244(b)(3). Good cause 5 appearing, the court will recommend that this action be dismissed without prejudice to petitioner 6 refiling after he obtains the required authorization. 7 Accordingly, IT IS HERBY ORDERED that 8 1. The court’s September 16, 2016 findings and recommendations are vacated; and 9 2. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 10) is granted; IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas corpus 10 11 be dismissed without prejudice. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, petitioner may file written 15 objections with the court. Such a document should be captioned “Objections to Magistrate 16 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 17 certificate of appealability should issue in the event he files an appeal of the judgment in this 18 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 19 deny a certificate of appealability when it enters a final order adverse to the applicant). Petitioner 20 is advised that failure to file objections within the specified time may waive the right to appeal the 21 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 Dated: October 13, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 1 howe1812.sus 1 This is actually the fourth time petitioner has filed a successive petition with respect to the convictions and sentence at issue. The three previous case numbers are 2:07-cv-2536 GEB JFM P, 2:12-cv-1901 KJM CMK P, and 2:16-cv-0828 CKD P. 2

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