United States District Court, D. Nevada
RICHARD F. BOULWARE, II United States District Judge.
habeas matter under 28 U.S.C. § 2254 comes before the
Court on petitioner's application (ECF No. 1) to proceed
in forma pauperis and for initial review under Rule
4 of the Rules Governing Section 2254 Cases. The Court finds
based on the materials submitted that petitioner is not able
to pay the filing fee within a reasonable period of time. The
Court therefore will grant the pauper application and proceed
to initial review.
initial review, it appears that the Court lacks jurisdiction
over the petition because it constitutes a successive
petition. Petitioner therefore will be directed to show cause
why the petition should not be dismissed without prejudice
for lack of jurisdiction.
Jackie Owens seeks to set aside his Nevada state judgment of
conviction, pursuant to a jury verdict, of sexual assault, in
No. 78C041647 in the state district court.
acknowledges in the petition form that he challenged the same
judgment of conviction previously in this Court in No.
3:81-cv-00180-ECR and that the prior petition was denied on
the merits. Online legal research confirms that the 1981
federal petition was denied on the merits. See Owens v.
Wolff, 532 F.Supp. 397 (D. Nev. 1981).
further appears that petitioner filed at least one additional
petition in this Court in No. 2:86-cv-00599-LDG and that the
single claim reached therein also ultimately was denied on
the merits. See Owens v. Sumner, 951 F.2d 361
(9th Cir. 1991)(text of unpublished disposition
available on Westlaw); Owens v. Sumner, 878 F.2d 386
(9th Cir. 1989)(same; action on a prior appeal in
the same case).
of the state district court's online docket sheet
reflects that there have been no intervening amended or
corrected judgments of conviction subsequent to the original
judgment of conviction.
asserts in the petition form that he has been given
permission by the Ninth Circuit to file the current
successive petition. (ECF No. 1-1, at 2.) However, the Court
was unable to find a proceeding on the Ninth Circuit's
online docket in which such permission was granted.
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, inter alia, No. 3:81-cv-00180. 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). Petitioner accordingly must show
cause why the petition should not be dismissed for lack of
jurisdiction as a successive petition.
THEREFORE IS ORDERED that petitioner's application (ECF
No. 1) to proceed in forma pauperis is GRANTED and
that petitioner shall not be required to pay the filing fee.
FURTHER IS ORDERED that the Clerk of Court shall file the
petition and that, within sixty (60) days of entry
of this order, petitioner shall SHOW CAUSE in writing why the
petition should not be dismissed for lack of jurisdiction as
a successive petition. If petitioner does not timely respond
to this order, the petition will be dismissed as a successive
petition without further advance notice.
FURTHER ORDERED that all assertions of fact made by
petitioner in response to this show-cause order must be
detailed, must be specific as to time and place, and must be
supported by competent evidence. The Court will not consider
any assertions of fact that are not specific as to time and
place, that are not made pursuant to a declaration under
penalty of perjury based upon personal knowledge, and/or that
are not supported by competent evidence filed by petitioner
in the federal record. Petitioner thus must attach copies of
all materials upon which he bases his argument that the
petition should not be dismissed as a successive petition.
Unsupported assertions of fact will be disregarded.
FURTHER ORDERED that petitioner shall attach with his
response a copy of any order obtained from the Ninth Circuit