(HC) Lopes v. Borla ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MANUEL D. LOPES, No. 2:24-cv-0161 CKD P 12 Petitioner, 13 v. ORDER AND 14 EDWARD BORLA, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Examination of the request to proceed in forma pauperis reveals 20 that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed 21 in forma pauperis will be granted. See 28 U.S.C. § 1915(a). 22 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 23 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 24 petitioner is not entitled to relief. The court has conducted that review. 25 Court records reveal that petitioner has previously filed a petition for a writ of habeas 26 corpus attacking the conviction and sentence challenged in this case. See Lopes v. Martel, 2:09- 27 cv-1359 KJM TJB P. Before petitioner can proceed with the instant successive petition, he must 28 obtain authorization from United States Court of Appeals for the Ninth Circuit pursuant to 28 1 || U.S.C. § 2244(b)(3). Because it does not appear that petitioner has obtained the required 2 || authorization, petitioner’s habeas petition must be dismissed. 3 Accordingly, IT IS HERBY ORDERED that 4 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; and 5 2. The Clerk of the Court is directed to assign a district court judge to this case. 6 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 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)(I). Within fourteen days 9 || after being served with these findings and recommendations, petitioner may file written 10 || objections with the court. Such a document should be captioned “Objections to Magistrate 11 || Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 12 | certificate of appealability should issue in the event he files an appeal of the judgment in this 13 || case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 14 || deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as 15 || here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 16 || issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 17 || district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 18 || debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 19 | v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 20 | (2000)). Petitioner is advised that failure to file objections within the specified time may waive 21 | the night to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: February 28, 2024 / ae / a ly. ae 8 CAROLYNK. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 | 1 2g lope0161.suc