Opinion
No. 2:15-cv-02054 KJM AC P
12-08-2015
DAI NGUYEN, Petitioner, v. DAVID DAVEY, Warden, Corcoran State Prison, Respondent.
FINDINGS AND RECOMMENDATION
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Examination of the request to proceed in forma pauperis demonstrates that it is incomplete.
Petitioner's request to proceed in forma pauperis is not set forth on the proper form, does not provide the required information, and fails to include the appropriate documentation. --------
More importantly, the court's records reveal that petitioner has previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in this case. See Nguyen v. Scribner, Case No. 2:06-cv-01389 GEB CMK P. The previous application was filed on June 22, 2006, and denied as untimely on October 31, 2006. Thereafter, the United States Court of Appeals for the Ninth Circuit denied petitioner's request for a certificate of appealability.
Before petitioner can proceed with the instant application, he must move in the Ninth Circuit Court of Appeals for an order authorizing the district court to consider the application. See 28 U.S.C. § 2244(b)(3). Therefore, petitioner's instant application must be dismissed without prejudice to its re-filing upon authorization from the Court of Appeals.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: December 8, 2015
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE