(HC) McGraw v. Cisneros ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH W. McGRAW, No. 2:21-cv-00176 WBS GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 CISNEROS, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 Pending before the court is petitioner’s motion to stay proceedings pursuant to Rhines v. 20 Weber, 544 U.S. 269 (2005). ECF No. 11. Review of petitioner’s motion to stay reveals petitioner 21 is seeking to challenge his 1992 conviction in the Placer County Superior Court. Upon initial 22 screening by the court, petitioner’s original petition presented a claim relating to a denial of a trial 23 transcript by the trial court. Compare ECF No. 1, with ECF No. 7, and ECF No. 11. However, 24 petitioner’s new assertions inform the court that petitioner seeks to pursue a habeas action 25 challenging his 1992 conviction. The court’s records reveal that petitioner has previously filed an 26 application for a writ of habeas corpus attacking the conviction and sentence challenged in this 27 case. The previous application was filed in 2015 and was denied on the merits on April 30, 2017. 28 //// 1 See McGraw v. Lizarraga, 2:15-cv-01150-GEB-CMK.1 (The petition was dismissed in part on the 2 basis of the statute of limitations). Accordingly, before petitioner can proceed with the instant 3 application, he must move in the United States Court of Appeals for the Ninth Circuit for an order 4 authorizing the district court to consider the application. See 28 U.S.C. § 2244(b)(3). Therefore, 5 petitioner’s application must be dismissed without prejudice to its re-filing upon obtaining 6 authorization from the United States Court of Appeals for the Ninth Circuit. 7 In light of the above, petitioner’s motion to stay should be denied as moot. 8 IT IS HEREBY RECOMMENDED that: 9 1. Petitioner’s motion to stay (ECF No. 11) be DENIED as moot; and 10 2. This action be dismissed as a second or successive habeas corpus application without 11 prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals 12 authorizing petitioner to file a successive petition. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, petitioner may file written 16 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 17 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 18 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 19 F.2d 1153 (9th Cir. 1991). 20 Dated: June 24, 2021 /s/ Gregory G. Hollows 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 1 A court may take judicial notice of court filings and other matters of public record. See Burbank– 28 Glendale–Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir.1998).