Ortega v. Spearman
ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/25/2017 GRANTING 2 Application to Proceed IFP; DENYING without prejudice 3 Request for Appointment of Counsel; DIRECTING Clerk to assign a district judge; and RECOMMENDING that this action be dismissed without prejudice. Assigned and referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
VICTOR ANTHONY ORTEGA,
No. 2:17-cv-1420 KJN P
ORDER AND FINDINGS AND
WARDEN MARION E. SPEARMAN,
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford
the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See
28 U.S.C. § 1915(a).
The court’s records reveal that petitioner has previously filed an application for a writ of
habeas corpus attacking the conviction and sentence challenged in this case. The previous
application was filed on September 16, 2013, and was denied on the merits on June 15, 2017.1
Before petitioner can proceed with the instant application, he must move in the United States
Petitioner filed an appeal, which is still pending in the Court of Appeals for the Ninth Circuit.
Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the
application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed
without prejudice to its re-filing upon obtaining authorization from the United States Court of
Appeals for the Ninth Circuit.
With his petition, petitioner filed a request for appointment of counsel at his anticipated
re-sentencing. In light of the recommended dismissal, petitioner’s request is denied without
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is granted;
2. Petitioner’s request for appointment of counsel (ECF No. 3) is denied without
3. The Clerk of the Court is directed to assign a district judge to this case; and
IT IS RECOMMENDED that this action be dismissed without prejudice.
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 fourteen days
after being served with these findings and recommendations, petitioner may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,
he shall also address whether a certificate of appealability should issue and, if so, why and as to
which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(3). Petitioner is advised that 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.
Dated: July 25, 2017
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