(HC) Henry v. Burton

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT HENRY, No. 2:22-cv-0609 KJM DB P 12 Petitioner, 13 v. ORDER 14 ROBERT BURTON, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed this application for a writ of habeas 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On December 13, 2023, the magistrate judge filed amended findings and 21 recommendations, which were served on all parties and which contained notice to all parties that 22 any objections to the amended findings and recommendations were to be filed within thirty days. 23 Petitioner filed timely objections to the amended findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 26 findings and recommendations to be supported by the record and by the proper analysis. 27 Accordingly, this action will be dismissed for lack of jurisdiction due to petitioner’s failure to 28 obtain authorization from the United States Court of Appeals for the Ninth Circuit to proceed 1 || with a second or successive petition as required by 28 U.S.C. § 2244(b)(3)(A). Petitioner’s 2 || request for a certificate of appealability, ECF No. 20 at 6, will be construed as a request for 3 | authorization to file a second or successive petition and, so construed, transferred to the United 4 | States Court of Appeals for the Ninth Circuit. See Cooper v. Calderon, 274 F.3d 1270, 1275 5 || (th Cir. 2001). 6 Accordingly, IT IS HEREBY ORDERED as follows: 7 1. The amended findings and recommendations filed December 13, 2023 (ECF No. 19), 8 | are adopted in full; 9 2. The petition is dismissed for lack of jurisdiction; 10 3. Petitioner’s request for a certificate of appealability, ECF No. 20 at 6, is construed as a 11 || request for authorization to file a second or successive petition in accordance with 28 U.S.C. 12 | § 2244(b)(3)(A); and 13 4. The Clerk of Court is directed to transfer this action to the United States Court of 14 | Appeals for the Ninth Circuit. 15 | DATED: April 15, 2024. 16 CHIEF ED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28