Shelmire v. Lizzaraga

Filing 6

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/8/2017 GRANTING petitioner's 2 application to proceed IFP; and the Clerk shall assign a district judge to this action. IT IS RECOMMENDED that this action be dismissed without prejudice. Assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, 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 ERIC LINELL SHELMIRE, 12 Petitioner, 13 14 15 v. No. 2:16-cv-2667 DB P ORDER AND FINDINGS AND RECOMMENDATIONS JOE LIZZARAGA, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. 20 Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 21 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 22 28 U.S.C. § 1915(a). 23 The court’s records reveal that petitioner has previously filed an application for a writ of 24 habeas corpus attacking the conviction and sentence challenged in this case. The previous 25 application was filed on May 15, 2006, and was denied on the merits on July 30, 2009. Before 26 petitioner can proceed with the instant application, he must move in the United States Court of 27 Appeals for the Ninth Circuit for an order authorizing the district court to consider the 28 application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed 1 1 without prejudice to its re-filing upon obtaining authorization from the United States Court of 2 Appeals for the Ninth Circuit. 3 In accordance with the above, IT IS HEREBY ORDERED that 4 1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is granted; and 5 2. The Clerk of the Court is directed to assign a district judge to this action. 6 Further, IT IS RECOMMENDED that this action be dismissed without prejudice. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, petitioner may file written 10 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 12 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 13 F.2d 1153 (9th Cir. 1991). 14 Dated: March 8, 2017 15 16 17 18 19 20 21 22 DLB:9 DLB1/prisoner-habeas/Shel2667.succ 23 24 25 26 27 28 2

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