CASE NO. C13-5904 BHS
ORDER ADOPTING REPORT
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 4), and Leon D. Currie's ("Currie") objections to the R&R (Dkt. 5).
Judge Creatura correctly found Currie's petition to be second or successive because Currie has filed two other habeas corpus petitions challenging this same conviction: C00-5484FDB/JKA and C06-5429RBL/KLS. See Dkt. 4. Due to the second or successive nature of the petition, Currie must seek authorization from the Ninth Circuit before filing a new petition. 28 U.S.C. § 2244(b)(3)(A). Following Ninth Circuit Rule 22-3(a), Judge Creatura properly recommended that Currie's petition be referred to the Ninth Circuit and the case be administratively closed without deciding whether the petition should be dismissed. Dkt. 4 at 2.
Ninth Circuit Rule 22-3(a) provides the following guidance regarding second or successive petitions:
Any petitioner seeking leave to file a second or successive 2254 petition or 2255 motion in district court must seek leave under 28 U.S.C. §§ 2244 or 2255. An original and five copies of the application must be filed with the Clerk of the Court of Appeals. No filing fee is required. If a second or successive petition or motion, or application for leave to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.
The Court having considered the R&R, Plaintiff's objections, and the remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED;
(2) This action is TRANSFERRED to the Ninth Circuit; and
(3) The Clerk is directed to administratively close the case.
BENJAMIN H. SETTLE
United States District Judge