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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY RAY BAKER,

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No. 2:17-cv-2096 CKD P

Petitioner,

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v.

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STU SHERMAN,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. Examination of the request to proceed in forma pauperis reveals

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that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed

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in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

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On October 30, 2017 petitioner consented to have the undersigned United States

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Magistrate Judge conduct all further proceedings in this matter pursuant to 28 U.S.C. § 636(c).

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Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all

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petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the

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petitioner is not entitled to relief. The court has conducted that review.

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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.
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LaMarque, Case No. 2:03-cv-2441 GEB GGH P; Baker v. Virga, Case No. 2:11-cv-1317 JAM

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KJN P. The first application was filed on November 24, 2003, and was dismissed as barred by

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the statute of limitations on June 25, 2004. Baker v. LaMarque, Case No. 2:03-cv-2441 GEB

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GGH P. “[D]ismissal of a section 2254 habeas petition for failure to comply with the statute of

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limitations renders subsequent petitions second or successive for purposes of the AEDPA, 28

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U.S.C. § 2244(b).” McNabb v. Yates, 576 F.3d 1028 (9th Cir. 2009). It was for this reason that

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petitioner’s second habeas petition filed on May 16, 2011 was dismissed without prejudice.

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Baker v. Virga, Case No. 2:11-cv-1317 JAM KJN P.

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Before petitioner can proceed with the instant successive petition, he must obtain

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authorization from United States Court of Appeals for the Ninth Circuit pursuant to 28 U.S.C. §

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2244(b)(3). Because it does not appear that petitioner has obtained the required authorization,

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petitioner’s habeas petition must be dismissed.

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Accordingly, IT IS HERBY ORDERED that

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1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 2) is granted;

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2. This action is dismissed without prejudice; and,

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3. The court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253.

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Dated: November 6, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/bake2096.sos.docx

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