United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
pro se petition for writ of habeas corpus relief
pursuant to 28 U.S.C. § 2254 comes before the Court for
initial review pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts, and
on Petitioner's application for leave to proceed in
forma pauperis. (ECF Nos. 1, 1-1.) Petitioner has also
filed a motion for Rule 60(b) relief and a motion for
appointment of counsel. (ECF Nos. 1-3, 1-4.) Following
review, the Court finds the petition is second or successive
and therefore must be dismissed for lack of jurisdiction. As
the Court lacks jurisdiction over the petition, all other
pending motions will accordingly be denied.
case, Petitioner challenges a 2008 judgment of conviction
entered in Eighth Judicial District Court No. 145210,
pursuant to which he is still in custody. Petitioner
acknowledges that he previously challenged this same judgment
of conviction in federal court in No. 3:05-cv-316-HDM-VPC.
(ECF No. 1-1 at 2.) The court in No. 3:05-cv-316-HDM-VPC
entered an order and judgment denying the petition on the
merits on June 23, 2008. Petitioner appealed, and both the
district court and the Ninth Circuit declined to issue a
certificate of appealability.
prior federal petition was decided on its merits, Petitioner
attacks the same judgment of conviction, and the claims
Petitioner raises here are based on facts that had occurred
by the time of the prior petition, this petition is second or
successive. See Brown v. Muniz, 889 F.3d 661, 667
(9th Cir. 2018), cert. denied sub nom. Brown v.
Hatton, 139 S.Ct. 841, 202 L.Ed.2d 610 (2019) (“It
is now understood that a federal habeas petition is second or
successive if the facts underlying the claim occurred by the
time of the initial petition, . . . and if the petition
challenges the same state court judgment as the initial
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.
See Brown, 889 F.3d at 667. Petitioner does not
indicate that he has received authorization from the Court of
Appeals to file this second or successive petition, nor do
the records of the Court of Appeals reflect that he has
sought to obtain any such authorization. This second or
successive petition must therefore be dismissed for lack of
Court lacks jurisdiction over the petition, all of
Petitioner's other motions are hereby denied.
therefore ordered that the Clerk of Court will file the
petition (ECF No. 1-1).
further ordered that this action is dismissed without
prejudice for lack of jurisdiction.
further ordered that all other pending motions (ECF Nos. 1,
1-3, 1-4) are denied.
further ordered that Petitioner is denied a certificate of
appealability, as jurists of reason would not find the
dismissal of the petition on jurisdictional grounds to be
debatable or wrong.
further ordered that, pursuant to Rule 4 of the Rules
Governing Section 2254 Cases, that the Clerk will make
informal electronic service upon Respondents by adding Nevada
Attorney General Aaron D. Ford as counsel for Respondents and
directing a notice of electronic filing of this order to his
office. No. response is required from Respondents other than
to respond to any orders of a reviewing court.
Clerk of Court is directed to send Petitioner a copy of all
his papers in this action.
Clerk of Court is further directed to enter final judgment
accordingly, dismissing this action ...