Case Information
*1 Case 2:16-cv-00141-KJN Document 5 Filed 03/01/16 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA TIMOTHY WAYNE PERRY, JR., No. 2:16-cv-0141 KJN P Petitioner,
v. ORDER
A. SOTO,
Respondent.
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. Petitioner consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a).
The court’s records reveal that petitioner has previously filed an application for a writ of habeas corpus attacking the 2007 conviction and sentence challenged in this case. Perry v. Hedgpeth, Case No. 2:10-cv-0875 JKS (E.D. Cal.). The previous application was filed on March 5, 2010, and was denied on the merits on August 5, 2011. Before petitioner can proceed with the instant application, he must move in the United States Court of Appeals for the Ninth Circuit for
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*2 Case 2:16-cv-00141-KJN Document 5 Filed 03/01/16 Page 2 of 2 an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed without prejudice to its re-filing upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit.
In accordance with the above, IT IS HEREBY ORDERED that: 1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is granted; and 2. This action is dismissed without prejudice.
Dated: March 1, 2016
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