Mullen v. Warden
ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 6/8/2017 GRANTING petitioner's 2 motion to proceed IFP; and the Clerk shall randomly assign a district judge to this action. IT IS RECOMMENDED this action be dismissed; and the Clerk shall close the file. Assigned and referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:17-cv-01115 GGH
WARDEN, PELICAN BAY STATE
ORDER AND FINDINGS AND
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. ECF No. 1. Petitioner has requested to proceed with this habeas in
forma pauperis and has submitted an affidavit which demonstrates he is unable to afford the costs
of suit that meets the requirements of 28 U.S.C. § 1915(a). ECF No. 2. Accordingly, the request
to proceed in forma pauperis will be granted.
Petitioner challenges the judgment of conviction entered against him on May 5, 2009 in
the Tehama County Superior Court for shooting at an uninhabited dwelling, permitting another to
discharge a firearm from a vehicle, participating in a street gang, and committing these offenses
for the benefit of a gang. ECF No. 1 at 1. The Court records indicate that petitioner has
previously filed a petition for relief challenging the same conviction. Civ. 2:13-cv-00165-MCE-
EFB. On August 4, 2015 that petition was denied on the merits and the case was closed. 14-cv-
166 at ECF 24.
Before a second, or successive, petition is brought a petitioner must bring a motion in the
Ninth Circuit Court of Appeals for an order authorizing this district court to consider the petition.
28 U.S.C. § 2244(b)(3)(A). According to the rule set forth in Slack v. McDaniel, 529 U.S. 473,
485-486 (2000) will be deemed successive for purposes of this code section only where the prior
petition was not adjudicated on the merits. See also Green v. White, 223 F.3d 1001, 1002 n.1
(9th Cir. 2000) citing Slack, supra. Because the prior habeas action was dismissed on the merits,
the instant petition is second, or successive.
Accordingly, IT IS ORDERED that:
1. Petitioner’s motion to proceed in forma pauperis is GRANTED;
2. The Clerk of Court shall randomly assign a district judge to this action.
IT IS RECOMMENDED THAT:
This action be dismissed;
The Clerk of the court shall close the file.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after
being served with these findings and recommendations, petitioner may file written objections
with the court. The document should be captioned “Objections to Magistrate Judge’s Findings
and Recommendations.” Failure to file objections within the specified time may waive the right
to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: June 8, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?