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Kille v. Williams

United States District Court, D. Nevada

October 26, 2017

DAVID AUGUST KILLE, SR., Petitioner,
v.
WARDEN BRIAN WILLIAMS, et al., Respondents

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         This 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. 2) to raise his copy credit limit, and for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been paid, and the Court therefore will deny the pauper application as moot and proceed to initial review.[1]

         Background

         Petitioner seeks to challenge his custody under his September 19, 2003, Nevada state conviction, pursuant to a guilty plea, of one count of sexual assault with a minor under sixteen years of age and one count of attempted sexual assault with a minor under sixteen years of age, in No. C193193 in the state district court.[2]

         Petitioner filed a federal petition in this Court challenging the same conviction in No. 3:06-cv-00492-LRH-VPC. The Court denied that petition as untimely on July 12, 2007; and the Court of Appeals denied a certificate of appealability on January 29, 2008, under No. 07-16628 in the appellate court.

         Petitioner thereafter filed, inter alia, a petition for a writ of coram nobis in No. 2:14-cv-01391-APG-VCF. The Court held that coram nobis relief was not available because petitioner's exclusive procedural vehicle for challenging his custody pursuant to a state judgment of conviction in federal court was a § 2254 habeas petition. Construed as such, the Court held that the petition was successive; and, under the procedures in place at that time, transferred the matter to the Court of Appeals as a successive petition. The Court of Appeals denied petitioner authorization to file a second or successive petition, under No. 14-73259 in that court. The Court of Appeals further rejected petitioner's effort to pursue the matter instead as a petition for a writ of coram nobis.

         The Ninth Circuit's online docket further reflects that, on May 17, 2016, petitioner filed an application for authorization to file a second or successive petition in the Court of Appeals, under No. 16-71495 in that court. Petitioner sought authorization to pursue a second or successive petition alleging, inter alia, that the State's alleged failure to properly apply good time credits constituted a breach of the plea agreement. The Court of Appeals denied authorization to file a second or successive petition on January 20, 2017; and the appellate court denied petitioner's motion for reconsideration of that denial on April 7, 2017.

         Only a matter of days later, on or about April 17, 2017, petitioner mailed the present federal petition in this matter to the Clerk of this Court for filing. Petitioner challenges his custody under the same September 19, 2003, judgment of conviction in No. C193193 in the state district court. He maintains, inter alia, that the State's alleged failure to properly apply good time credits constitutes a breach of the plea agreement. He seeks a writ of habeas corpus vacating the judgment of conviction in that case and returning him to the status quo ante as to the plea agreement.

         There have been no intervening amended or corrected judgments of conviction in the state district court subsequent to the September 19, 2003, original judgment of conviction.

         Discussion

         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 his custody under the same judgment of conviction that he previously challenged in No. 3:06-cv-00492. The present petition constitutes a second or successive petition because that prior petition was dismissed as untimely. See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009)(holding that the dismissal of a federal petition on the ground of untimeliness is a determination on the merits for purposes of § 2244(b)).

         The Court of Appeals denied petitioner authorization to file a second or successive petition on substantially the same grounds presented in the current petition virtually immediately prior to petitioner's filing of the current petition. That denial is law of the case and binding on this lower court.

         Petitioner's argument in the petition as to why - despite the Ninth Circuit's clear denial of authorization, to which he does not refer - he is not ...


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