Case Information
*1 Case 1:20-cv-01783-AWI-SKO Document 13 Filed 01/05/21 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA JOSE A. MELENDEZ, Case No. 1:20-cv-01783-SKO (HC)
Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v.
FINDINGS AND RECOMMENDATION TO UNITED STATES OF AMERICA, DISMISS DUPLICATIVE PETITION FOR
WRIT OF HABEAS CORPUS Respondent.
[21-DAY OBJECTION DEADLINE]
Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
On December 18, 2020, Petitioner filed the instant petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. Because the petition challenges the execution of Petitioner’s sentence, and Petitioner is incarcerated at the United States Penitentiary located in Atwater, California, which is within the jurisdiction of this Court, the petition was transferred here. Upon review of the petition, the Court finds it to be duplicative of a previously filed petition. Therefore, the Court will recommend it be DISMISSED .
DISCUSSION Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the
1 *2 Case 1:20-cv-01783-AWI-SKO Document 13 Filed 01/05/21 Page 2 of 2 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Petitioner alleges that the BOP has failed to properly credit his sentence with 859 days of prior custody time. The petition is duplicative of the petition filed on December 16, 2020, in Melendez v. Barr, Case No. 1:20-cv-01773-SKO. A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1).
ORDER Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. RECOMMENDATION
For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be DISMISSED.
This Findings and Recommendation is submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one days after being served with a copy, Petitioner may file written objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 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).
IT IS SO ORDERED. /s/ Sheila K. Oberto .
Dated: January 4, 2021 UNITED STATES MAGISTRATE JUDGE 2