United States District Court, D. Nevada
RICHARD F. BOULWARE, II United States District Judge
represented habeas matter under 28 U.S.C. § 2254 comes
before the Court on petitioner's filing docketed as a
supplemental motion (ECF No. 16) for a writ of habeas corpus,
on petitioner's counsel's motion (ECF No. 29) to
withdraw as counsel, and for initial review under Rule 4 of
the Rules Governing Section 2254 Cases.
motion to withdraw will be granted, and Ms.
Rasmussen will be formally substituted as replacement
counsel. It is preferable generally that replacement counsel
file a motion to substitute rather than merely entering an
appearance, but the Court understands that new counsel may
have proceeded in this fashion in light of Mr. Potter's
supplemental filing (ECF No. 16) was improperly designated as
a motion rather than a supplemental pleading when filed by
former counsel. The Court will direct the Clerk to correct
the docket entry and clear the pending motion designation on
to initial review, it appears that the Court lacks
jurisdiction over the petition, including as supplemented,
because it constitutes a successive petition.
Petitioner therefore will be
directed to show cause, through counsel, why the
petition should not be dismissed without prejudice for lack
Kenneth Friedman is in custody pursuant to a Nevada state
conviction, pursuant to a jury verdict, of one count of
felony aggravated stalking, multiple counts of gross
misdemeanor indecent exposure, and multiple counts of gross
misdemeanor open or gross lewdness; and he was adjudicated
and sentenced as a habitual criminal. He is serving a
sentence of, inter alia, life without the
possibility of parole.
original judgment of conviction was entered in No. C190974 in
the state district court on April 13, 2004; and an amended
judgment of conviction was entered thereafter on May 7,
previously sought federal habeas relief in this Court
challenging his custody under the foregoing judgments entered
in C190974 in Friedman v. Palmer, No.
3:07-cv-00338-LRH-VPC. The Court dismissed that prior
petition on the merits on August 21, 2013; and the Court of
Appeals denied a certificate of appealability on June 23,
of the state district court's online docket sheet
reflects that there have been no intervening amended or
corrected judgments of conviction entered in that court
subsequent to the May 7, 2004, amended judgment of
conviction, which was entered prior to the earlier action in
now challenges his custody under the same May 7, 2004,
amended judgment of conviction again in the present action,
which was constructively filed pro se on or about
March 1, 2015. At that time, petitioner's pro se
application for authorization to file a second or successive
petition was pending under No. 15-70695 in the Court of
Appeals. Petitioner specifically referenced the pro
se petition in the current action in his filings in the
Court of Appeals, and he specifically contended that he could
pursue claims for relief from an allegedly illegal sentence
without procedural bars or time limits. The Court of
Appeals was not persuaded. The court denied the application
for authorization to file a second or successive petition on
May 18, 2015, holding that petitioner had not made the
prima facie showing required under 28 U.S.C. §
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, 152-53
(2007). A subsequent petition filed after a prior petition
was denied on the merits constitutes a successive petition.
See, e.g., Henderson v. Lampert, 396 F.3d 1049,
1052-53 (9th Cir. 2005).
present case, the Ninth Circuit has considered and denied
petitioner's application for authorization to pursue a
second or successive petition. Petitioner accordingly must
show cause, through counsel, why the petition should not be
dismissed for lack of jurisdiction as a successive petition.
responding, petitioner must demonstrate in the first
instance, with citation to apposite controlling authority,
why the Court of Appeals order in No. 15-70695 is not law of
the case in this matter. Moreover, to the extent that
petitioner contends that the petition is not successive
because petitioner allegedly challenges only his sentence, he
must cite apposite controlling authority - i.e.,
specifically applying 28 U.S.C. § 2244(b) rather than
pertaining instead to a different issue - that this
distinction is one with a difference in this context, where
there is no intervening judgment of conviction subsequent to
the prior federal action. See generally Magwood v.
Patterson, 561 U.S. 320 (2010).
THEREFORE IS ORDERED that the motion (ECF No. 29) to
withdraw as counsel is GRANTED, that Cal J. Potter, III, and
Cal J. Potter, IV, are WITHDRAWN as counsel, and that Lisa ...