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Vasquez v. Baca

United States District Court, D. Nevada

October 3, 2017

ROSENDO VASQUEZ, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

         This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review. The filing fee has been paid.

         Following 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.

         Petitioner Rosendo Vasquez seeks to set aside his April 26, 2007, Nevada state judgment of conviction, pursuant to a guilty plea, of three counts of attempted lewdness with a child under the age of fourteen, in No. C229752 in the state district court.[1]

         Petitioner previously sought federal habeas relief in this Court challenging the same April 26, 2007, judgment of conviction in No. C229752 in Vasquez v. Lovelock Correctional Center Warden, No. 2:09-cv-00834-LDG-RJJ. The Court dismissed that prior petition on the merits on October 8, 2010; and petitioner did not file an appeal.

         Review of the state district court's online docket sheet reflects that there have been no intervening amended or corrected judgments of conviction filed in that court subsequent to the April 26, 2007, judgment.

         Petitioner asserts in response to the pertinent inquiry incorrectly that the present petition is his first federal petition. He thus does not reflect that he has obtained permission to file a successive petition from the Court of Appeals. (ECF No. 1-1, at 2.)[2]

         The claims in the current petition clearly challenge the same April 26, 2007, judgment of conviction that petitioner challenged in the prior petition.[3]

         Under 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. 2:09-cv-00834. 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.

         IT THEREFORE IS ORDERED that the Clerk of Court shall file the petition[4] and that, within thirty (30) 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. If petitioner responds but fails to demonstrate that the petition is not subject to dismissal as a successive petition, the action will be dismissed.

         IT IS 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 upon which he bases his argument that the petition should not be dismissed as a successive petition. Unsupported assertions of fact will be disregarded.

---------

Notes:

[1]The Court takes judicial notice of its records in the prior action filed in this Court by petitioner as well as of the online docket records of the Eighth Judicial District Court for the State of Nevada. E.g., Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). The online docket records of the state district court may be accessed from: https://www.clarkcountycourts.us/Anonymous/default.aspx.

[2]Petitioner is cautioned that making a false statement in a petition signed pursuant to a declaration under penalty of perjury may subject petitioner to prosecution for perjury. Further, the Court may refer the matter to correctional authorities for possible ...


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