Mullen v. Warden

Filing 5

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MATTHEW MULLEN,
Petitioner,

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No. 2:17-cv-01115 GGH

v.
WARDEN, PELICAN BAY STATE
PRISON,

ORDER AND FINDINGS AND
RECOMMENDATIONS

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Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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under 28 U.S.C. § 2254. ECF No. 1. Petitioner has requested to proceed with this habeas in

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forma pauperis and has submitted an affidavit which demonstrates he is unable to afford the costs

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of suit that meets the requirements of 28 U.S.C. § 1915(a). ECF No. 2. Accordingly, the request

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to proceed in forma pauperis will be granted.

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Petitioner challenges the judgment of conviction entered against him on May 5, 2009 in

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the Tehama County Superior Court for shooting at an uninhabited dwelling, permitting another to

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discharge a firearm from a vehicle, participating in a street gang, and committing these offenses

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for the benefit of a gang. ECF No. 1 at 1. The Court records indicate that petitioner has

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previously filed a petition for relief challenging the same conviction. Civ. 2:13-cv-00165-MCE-

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EFB. On August 4, 2015 that petition was denied on the merits and the case was closed. 14-cv-

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166 at ECF 24.
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Before a second, or successive, petition is brought a petitioner must bring a motion in the

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Ninth Circuit Court of Appeals for an order authorizing this district court to consider the petition.

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28 U.S.C. § 2244(b)(3)(A). According to the rule set forth in Slack v. McDaniel, 529 U.S. 473,

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485-486 (2000) will be deemed successive for purposes of this code section only where the prior

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petition was not adjudicated on the merits. See also Green v. White, 223 F.3d 1001, 1002 n.1

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(9th Cir. 2000) citing Slack, supra. Because the prior habeas action was dismissed on the merits,

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the instant petition is second, or successive.

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Accordingly, IT IS ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis is GRANTED;

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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:

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1.

This action be dismissed;

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2.

The Clerk of the court shall close the file.

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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 14 days after

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being served with these findings and recommendations, petitioner may file written objections

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with the court. The document should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.” Failure to file objections within the specified time may waive the right

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to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 8, 2017

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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