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Friedman v. Cox

United States District Court, D. Nevada

October 23, 2017

KENNETH FRIEDMAN, Petitioner,
v.
JAMES COX, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II United States District Judge

         This 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.

         The 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 health issues.

         The 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 the docket.

         Turning 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 of jurisdiction.

         Petitioner 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.

         The 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, 2004.[1]

         Petitioner 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, 2014.

         Review 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 this Court.

         Petitioner 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.[2] 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. § 2244(b)(2).

         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, 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).

         In the 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.

         In 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).

         IT 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 ...


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