Ortiz v. Baughman
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/22/2018 ORDERING the 4 court's order filed 2/22/2018 is VACATED as unnecessary; petitioner's 5 request for appointment of counsel is DENIED as moot; and the Clerk shall randomly assign a district judge to this action. IT IS RECOMMENDED that this action be dismissed without prejudice because premised on an unauthorized successive petition for writ of habeas corpus under 28 U.S.C. § 2254. 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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TRAVIS MICHAEL ORTIZ,
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Petitioner,
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v.
ORDER and
DAVID BAUGHMAN, Warden,
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No. 2:18-cv-00255 AC P
FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. See ECF No. 1. Petitioner has not yet submitted an application to
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proceed in forma pauperis or pay the filing fee. See ECF No. 4. Petitioner has sought to confirm
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the court’s receipt of his consent to the jurisdiction of the undersigned magistrate judge, see ECF
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Nos. 3 (consent) & 6 (letter confirming consent),1 and filed a motion for appointment of counsel,
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see ECF No. 5. However, because the instant petition for writ of habeas corpus is the second
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filed by petitioner challenging his 2012 conviction and sentence in the Butte County Superior
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Court, this action must be dismissed without prejudice to its re-filing should petitioner obtain
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authorization from the Ninth Circuit Court of Appeals.
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Notwithstanding petitioner’s consent to proceed before the undersigned magistrate judge for all
purposes, under 28 U.S.C. § 636(c), the recommended dismissal of this case is directed to the
assigned district judge pursuant 28 U.S.C. § 636(b)(1). See Williams v. King, 875 F.3d 500 (9th
Cir. 2017).
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The court’s records reveal that petitioner previously filed a petition for writ of habeas
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corpus attacking the same conviction and sentence challenged in the instant case.2 The previous
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petition was filed on March 30, 2016, and denied on the merits on March 20, 2018. See Ortiz v.
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Baughman, Case No. 2:16-cv-00659 KJM CDK P. Before petitioner can proceed with the instant
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petition, he must move in, and obtain from, the Ninth Circuit Court of Appeals, an order
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authorizing the district court to consider the merits of his successive petition. See 28 U.S.C.
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§ 2244(b)(3). Absent such authorization, the instant petition must be dismissed without
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prejudice. Id.
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Accordingly, IT IS HEREBY ORDERED that:
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1. This court’s order filed February 22, 2018, ECF No. 4, is vacated as unnecessary;
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2. Petitioner’s request for appointment of counsel, ECF No. 5, is denied as moot; and
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3. The Clerk of Court is directed to randomly assign a district judge to this action.
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Further, IT IS HEREBY RECOMMENDED that this action be dismissed without
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prejudice because premised on an unauthorized successive petition for writ of habeas corpus
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under 28 U.S.C. § 2254.
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These findings and recommendations are submitted to the United States District Judge
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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, petitioner may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Petitioner is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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DATED: March 22, 2018
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A court may take judicial notice of its own records and the records of other courts. See MGIC
Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d
118, 119 (9th Cir. 1980).
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