United States District Court, D. Nevada
D. MCKIBBEN UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
claims in the current petition clearly challenge the same
April 26, 2007, judgment of conviction that petitioner
challenged in the prior petition.
has not obtained authorization from the Court of Appeals to
file a second or successive petition.
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 &
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).
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. 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
THEREFORE IS ORDERED that this action shall be DISMISSED
without prejudice for lack of jurisdiction as a successive
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) ...