(HC)Henderson v. State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LANCE K. HENDERSON, No. 2:20-cv-1305 KJM DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 STATE OF CALIFORNIA, 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the $5 filing fee. 19 In this action, petitioner challenges his 2004 conviction from the Sacramento County 20 Superior Court. Court records indicate that petitioner has previously brought a habeas petition in 21 this court challenging the same conviction, Case No. 06-cv-2369 JAM CMK P.1 On October 15, 22 2008, the court denied petitioner’s habeas petition, and the Ninth Circuit denied petitioner’s 23 appeal on March 8, 2010. In the instant case, petitioner is attempting to bring a second or 24 successive petition. However, before a second or successive petition is filed in the district court, 25 the applicant is required to move in the appropriate court of appeals for an order authorizing the 26 district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). Here, petitioner has not 27 1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 28 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). wOASe 2 EUV EVENS NID MMU ONO OF ee AY ee 1 | obtained an order from the Ninth Circuit authorizing the district court to consider this second or 2 || successive petition. Petitioner cannot proceed with this action unless and until he obtains such an 3 || order from the Ninth Circuit. 4 Accordingly, THE COURT HEREBY RECOMMENDS that this action be dismissed 5 || without prejudice to its refiling with a copy of an order from the Ninth Circuit authorizing 6 || petitioner to file a second or successive petition. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 9 || after being served with these findings and recommendations, petitioner may file written 10 | objections with the court and serve a copy on all parties. Such a document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” Petitioner is advised that 12 | failure to file objections within the specified time may waive the right to appeal the District 13 | Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 15 Dated: August 26, 2020 17 18 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 20 | □□□ DB/Inbox/Substantive/hend1305.suec 22 23 24 25 26 27 28