Baker v. Sherman

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/6/2017 GRANTING 2 Motion to Proceed IFP, DISMISSING action without prejudice, and DECLINING to issue a Certificate of Appealability. CASE CLOSED. (Henshaw, R)

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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 TIMOTHY RAY BAKER, 12 No. 2:17-cv-2096 CKD P Petitioner, 13 v. 14 STU SHERMAN, 15 ORDER Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition 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. Examination of the request to proceed in forma pauperis reveals 20 that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed 21 in forma pauperis will be granted. See 28 U.S.C. § 1915(a). 22 On October 30, 2017 petitioner consented to have the undersigned United States 23 Magistrate Judge conduct all further proceedings in this matter pursuant to 28 U.S.C. § 636(c). 24 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 25 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 26 petitioner is not entitled to relief. The court has conducted that review. 27 28 Court records reveal that petitioner has previously filed two separate petitions for a writ of habeas corpus attacking the 1997 conviction and sentence challenged in this case. See Baker v. 1 1 LaMarque, Case No. 2:03-cv-2441 GEB GGH P; Baker v. Virga, Case No. 2:11-cv-1317 JAM 2 KJN P. The first application was filed on November 24, 2003, and was dismissed as barred by 3 the statute of limitations on June 25, 2004. Baker v. LaMarque, Case No. 2:03-cv-2441 GEB 4 GGH P. “[D]ismissal of a section 2254 habeas petition for failure to comply with the statute of 5 limitations renders subsequent petitions second or successive for purposes of the AEDPA, 28 6 U.S.C. § 2244(b).” McNabb v. Yates, 576 F.3d 1028 (9th Cir. 2009). It was for this reason that 7 petitioner’s second habeas petition filed on May 16, 2011 was dismissed without prejudice. 8 Baker v. Virga, Case No. 2:11-cv-1317 JAM KJN P. 9 Before petitioner can proceed with the instant successive petition, he must obtain 10 authorization from United States Court of Appeals for the Ninth Circuit pursuant to 28 U.S.C. § 11 2244(b)(3). Because it does not appear that petitioner has obtained the required authorization, 12 petitioner’s habeas petition must be dismissed. 13 Accordingly, IT IS HERBY ORDERED that 14 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; 15 2. This action is dismissed without prejudice; and, 16 3. The court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253. 17 Dated: November 6, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 12/bake2096.sos.docx 26 27 28 2

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