United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
habeas matter under 28 U.S.C. § 2254 comes before the
Court on petitioner's application (ECF No. 1) to proceed
in forma pauperis, on his motion (ECF No. 3) for
appointment of counsel, and for initial review under Rule 4
of the Rules Governing Section 2254 Cases. Petitioner
subsequently paid the filing fee, and the Court therefore
will deny the pauper motion without prejudice as moot and
proceed to initial review.
initial review, it appears that the Court lacks jurisdiction
over the petition because it constitutes a successive
petition. Petitioner therefore will be directed to show cause
why the petition should not be dismissed without prejudice
for lack of jurisdiction.
Anthony Edward Petty seeks to set aside his January 8, 2001,
Nevada state judgment of conviction, pursuant to a jury
verdict, of first-degree murder with the use of a deadly
weapon. He is serving two consecutive sentences of life with
the possibility of parole after twenty years on each
previously sought federal habeas relief in this Court
challenging the same January 8, 2001, judgment of conviction
in Petty v. Schomig, No. 2:04-cv-00947-RLH-LRL. The
Court dismissed that prior petition on the merits on March
20, 2006, and the Court of Appeals denied a certificate of
appealability on December 26, 2006.
of the online records of the state district court reflects
that there have been no intervening amended or corrected
judgments of conviction filed in that court subsequent to the
January 8, 2001, judgment.
asserts in response to the pertinent inquiry in the federal
petition form that he has not obtained permission to file a
successive petition from the Court of Appeals. (ECF No. 1-1,
at 2.) The claims in the current petition clearly challenge
the January 8, 2001, conviction.
28 U.S.C. § 2244(b)(3), before a second or successive
petition is filed in the federal district court, the
petitioner must move in the court of appeals for an order
authorizing the district court to consider the petition. A
federal district court does not have jurisdiction to
entertain a successive petition absent such permission.
E.g., Burton v. Stewart, 549 U.S. 147, 149 &
152-53 (2007). In the present petition, petitioner seeks to
challenge the same judgment of conviction that he previously
challenged in No. 2:04-cv-00947. The present petition
constitutes a second or successive petition because that
prior petition was dismissed on the merits. See, e.g.,
Henderson v. Lampert, 396 F.3d 1049, 1052-53 (9th Cir.
2005). Petitioner accordingly must show cause why the
petition should not be dismissed for lack of jurisdiction as
a successive petition.
to the motion for appointment of counsel, the Sixth Amendment
right to counsel does not apply in habeas corpus actions.
See Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th
Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B)
authorizes a district court to appoint counsel to represent a
financially eligible habeas petitioner whenever "the
court determines that the interests of justice so
require." The decision to appoint counsel lies within
the discretion of the court; and, absent an order for an
evidentiary hearing, appointment is mandatory only when the
circumstances of a particular case indicate that appointed
counsel is necessary to prevent a due process violation.
See, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 (9th
Court does not find that the interests of justice require the
appointment of counsel herein. Petitioner has demonstrated an
adequate ability to address the potential issues presented in
this case proceeding in proper person. The Court further is
not persuaded that appointment of counsel is required or
warranted for petitioner to respond to the order to show
cause. Petitioner must respond to the show-cause order
pro se without counsel.
THEREFORE IS ORDERED that petitioner's application (ECF
No. 1) to proceed in forma pauperis is DENIED
without prejudice as moot following upon petitioner's
payment of the filing fee.
FURTHER IS ORDERED that petitioner's motion (ECF No. 3)
for appointment of counsel is DENIED.
FURTHER IS ORDERED that the Clerk of Court shall file the
petition and that, within sixty (60) days
of entry of this order, petitioner shall SHOW CAUSE
in writing why the petition should not be dismissed for lack
of jurisdiction as a successive petition. If
petitioner does not timely respond to this order, the
petition will be dismissed as a successive petition without
further advance notice.
FURTHER ORDERED that all assertions of fact made by
petitioner in response to this show-cause order must be
detailed, must be specific as to time and place, and must be
supported by competent evidence. The Court will not consider
any assertions of fact that are not specific as to time and
place, that are not made pursuant to a declaration under
penalty of perjury based upon personal knowledge, and/or that
are not supported by competent evidence filed by petitioner
in the federal record. Petitioner thus must attach copies of
all materials ...