(HC) Ceasar v. Covello ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER DANNY CEASAR, III., No. 2:20-cv-2140 KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner paid the filing fee. 19 The court’s records reveal that petitioner previously filed an application for a writ of 20 habeas corpus attacking the 2006 conviction and sentence challenged in this case. The previous 21 application1 was filed on February 16, 2010, and was dismissed as barred by the one-year 22 AEDPA statute of limitations. See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) 23 (dismissal on statute of limitations grounds constitutes disposition on the merits rendering 24 subsequent petition “second or successive”). Before petitioner can proceed with the instant 25 application, he must move in the United States Court of Appeals for the Ninth Circuit for an order 26 authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, 27 28 1 Ceasar v. Allison, No. 2:10-cv-0392 JAM GGH (E.D. Cal.). 1 | petitioner’s application must be dismissed without prejudice to its re-filing upon obtaining 2 | authorization from the United States Court of Appeals for the Ninth Circuit. 3 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is 4 | directed to assign a district judge to this case; and 5 IT IS RECOMMENDED that this action be dismissed without prejudice. 6 These findings and recommendations are submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, petitioner may file written 9 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 10 | Findings and Recommendations.” Petitioner is advised that failure to file objections within the 11 | specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 12 | F.2d 1153 (9th Cir. 1991). 13 || Dated: November 30, 2020 i Aectl Aharon 15 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 16 fceas2140.suce 17 18 19 20 21 22 23 24 25 26 27 28