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UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9 10 11 DAVID RANDOLPH SMITH, Case No. 2:20-cv-02641-JGB (AFM) 12 Petitioner,

ORDER (1) ACCEPTING FINDINGS

v. 13 AND RECOMMENDATIONS OF 14 MONA D. HOUSTON, Warden, UNITED STATES MAGISTRATE

JUDGE AND (2) REFERRING

15 Respondent. PETITIONER’S REQUEST FOR

AUTHORIZATION TO NINTH

16 CIRCUIT (ECF NO. 19) 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on 19 file and the Report and Recommendation (“Report”) of United States Magistrate 20 Judge. Further, the Court has engaged in a de novo review of those portions of the 21 Report to which objections have been made. Petitioner’s objections are overruled. 22 Petitioner has also filed a Request for Authorization to File a Second or 23 Successive Petition. (ECF No. 19.) Although the caption indicates that Petitioner 24 intended to file it in the Ninth Circuit Court of Appeals, the petition was filed in this 25 Court. Ninth Circuit Rule 22-3(a) states, in pertinent part, that “[i]f a second or 26 successive petition or motion, or an application for authorization to file such a 27 petition or motion, is mistakenly submitted to the district court, the district court shall 28 1 || refer it to the court of appeals.” Because it appears that Petitioner mistakenly 2 || submitted his request in this Court, the request is referred to the Court of Appeals. 3 || See Scott v. Neuschmid, 2019 WL 5294396, at *2 (C.D. Cal. Oct. 18, 2019) 4 || (simultaneously referring successive habeas petition to Ninth Circuit pursuant to 5 || Ninth Circuit Rule 22-3(a) and dismissing action without prejudice for lack of 6 || jurisdiction); Ciotta v. Frauenheim, 2018 WL 6025845, at *3 (C.D. Cal. Nov. 8, 7 || 2018) (same); Thomas v. Asuncion, 2018 WL 4027105, at *2 (C.D. Cal. Aug. 20, 8 |} 2018). 9 IT THEREFORE IS ORDERED that: 10 (1) The Report and Recommendation of the Magistrate Judge is accepted and 11 || adopted. 12 (2) Judgment shall be entered dismissing Grounds One through Four of the 13 || petition with prejudice and dismissing Ground Five of the petition for lack of 14 || jurisdiction. 15 (3) Pursuant to Ninth Circuit Rule 22-3(a), Petitioner’s request for 16 || authorization to file a second or successive petition is referred to the Court of 17 || Appeals. The Clerk of Court shall send a copy of the Petition and this Order to the 18 || Clerk of the Court of Appeals for the Ninth Circuit. The Clerk also shall mail 19 || Petitioner a copy of Ninth Circuit Rule 22-3 and Ninth Circuit Court of Appeals Form 20 || 12, entitled “Application for Leave to File Second or Successive Petition Under 28 21 || U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.” 22 23 || DATED: September 2, 2020

°° ~__| JESUS G. BERNAL

26 UNMED STATES DISTRICT JUDGE 27 28