Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6), together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The court has not ruled on the application to proceed in forma pauperis.
The motion will be construed as an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 as it does not seek to challenge a prior judgment, but seeks to raise new claims. Rule 60(b) is not a vehicle in which to raise new claims.
The court's records reveal that petitioner has previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in this case. The previous application was filed on March 9, 2009, and was denied on the merits on May 11, 2010. See Chapman v. Small, No. 2:09-cv-0639 (ECF No. 16). The current filing seeks to raise a new claim not previously raised in the prior habeas petition. Whether purposeful or unintentional, petitioner has characterized his filing such that it evades the requirements of the rules on successive petitions. Before petitioner can proceed with the instant application, he must move in the United States Court of Appeals for the Ninth Circuit for 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 the Clerk of Court shall randomly assign a district judge to this action; and
IT IS RECOMMENDED that this action be dismissed without prejudice.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." 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). Dated: September 26, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE Chap2108.success