Moreland v. Alfaro
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/20/2016 ORDERING the Clerk to randomly assign a US District Judge to this action. IT IS RECOMMENDED that this action be dismissed without prejudice. Assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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RALPH D. MORELAND,
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Petitioner,
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v.
No. 2:16-cv-02700 GGH
ORDER AND
FINDINGS AND RECOMMENDATIONS
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SANDRA ALFARO, 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. The court’s records reveal that petitioner has previously
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filed an application for a writ of habeas corpus attacking the conviction and sentence challenged
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in this case. The previous application was filed on January 6, 2015, and was denied as
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successive, which itself referenced a Northern District, CA habeas, CO1-1470-MJJ, which had
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been dismissed as untimely, i.e., on the merits on March 1, 2016.1 See Moreland v. Arnold,
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2:15-cv-0286 KJM AC. The current petition represents a successive challenge to the same 1996
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conviction at issue in petitioner’s prior petition. Before petitioner can proceed with the instant
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application, he must move in the United States Court of Appeals for the Ninth Circuit for an order
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authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). In the absence
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The Northern District, CA 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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of such an order this court has no jurisdiction to address the present petition. Burton v. Stewart,
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549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). Therefore,
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petitioner’s application must be dismissed without prejudice to its refiling upon obtaining
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authorization from the United States Court of Appeals for the Ninth Circuit.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a
United States 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: November 20, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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GGH:076/More.286.success
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