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Vasquez v. Baca

United States District Court, D. Nevada

November 22, 2017

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

          ORDER

          HOWARD D. MCKIBBEN UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte inquiry as to whether the petition should be dismissed as a successive petition. This order follows upon the Court's earlier show-cause order and petitioner's response thereto. ECF Nos. 7 & 9.

         Background

         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.

         The claims in the current petition clearly challenge the same April 26, 2007, judgment of conviction that petitioner challenged in the prior petition.[2]

         Petitioner has not obtained authorization from the Court of Appeals to file a second or successive petition.

         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 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).

         In his show-cause response, petitioner concedes that the current petition is a successive petition. (ECF No. 9, at 4, lines 9-10.) To the extent that petitioner references 28 U.S.C. § 2244(b)(2)(B) as a potential basis for authorizing pursuit of a successive petition, he must present any such argument to the Court of Appeals in the first instance via an application to that court for authorization to file a second or successive petition.[3] See 28 U.S.C. § 2244(b)(3)(A) & (C). His remaining arguments - such as those relying upon his lay status or pertaining to the application of other procedural bars - do not provide a basis for considering a successive petition under § 2244(b)(2); and to any arguendo extent that they are relevant, they also must be presented to the Court of Appeals in the first instance.

         IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice for lack of jurisdiction as a successive petition.

         IT FURTHER IS ORDERED, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, that the Clerk of Court shall make informal electronic service upon respondents by adding Nevada Attorney General Adam P. Laxalt as counsel for respondents and directing a notice of electronic filing of this order to his office, that the Clerk shall direct regenerated notices of electronic filing of the prior filings herein to the attorney general, and that counsel shall file a notice of appearance within twenty-one (21) ...


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