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 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. 5 & 8.)
Anthony Edward Petty seeks to set aside his January 8, 2001,
Nevada state judgment of conviction, pursuant to a jury
verdict, of first-degree murder with the use of a deadly
weapon. He is serving two consecutive sentences of life with
the possibility of parole after twenty years on each
previously sought federal habeas relief in this Court
challenging the same January 8, 2001, judgment of conviction
in Petty v. Schomig, No. 2:04-cv-00947-RLH-LRL. The
Court dismissed that prior petition on the merits on March
20, 2006, and the Court of Appeals denied a certificate of
appealability on December 26, 2006.
of the online records of the state district court reflects
that there have been no intervening amended or corrected
judgments of conviction filed in that court subsequent to the
January 8, 2001, judgment.
asserts in response to the pertinent inquiry in the federal
petition form that he has not obtained permission to file a
successive petition from the Court of Appeals. (ECF No. 1-1,
at 2.) The claims in the current petition clearly challenge
the prior conviction.
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.
2:04-cv-00947. 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 does not directly contest
that the present petition is a successive petition and that
he has not obtained authorization from the Court of Appeals
to pursue the petition. He instead contends that he can
establish cause and prejudice to overcome a “procedural
default” of the petition because he did not have the
assistance of counsel in the state district court during his
state post-conviction proceedings, relying upon Martinez
v. Ryan, 566 U.S. 1 (2012).
prior order directed petitioner to show cause why the
petition should not be dismissed as a successive petition,
not why any claim or claims should be dismissed as
procedurally defaulted. The procedural default doctrine, and
cause and prejudice under Martinez, have nothing to
do with the threshold jurisdictional issue of whether a
petition is subject to dismissal as a successive petition.
Nothing in the prior order suggested that petitioner could
overcome the jurisdictional bar to pursuit of a successive
petition by demonstrating cause and prejudice instead under
the procedural default doctrine.
record presented, there is no question that the petition must
be dismissed for lack of jurisdiction because it is a
successive petition. Petitioner cannot pursue a successive
petition unless he first obtains authorization from the Court
of Appeals by satisfying the criteria in 28 U.S.C. §
2244(b)(2), via an application filed in that court.
regard to petitioner's second request for appointment of
counsel in his letter (ECF No. 7), the Court reiterates its
prior finding that the interests of justice do not ...