United States District Court, D. Nevada
D. McKIBBEN UNITED STATES DISTRICT JUDGE.
who is in custody at the Lovelock Correctional Center, has
filed a petition for a writ of habeas corpus (ECF No. 1). The
petition contains multiple defects. Petitioner will need to
file an amended petition on the correct form. Petitioner also
will need to show cause why this action should not be
dismissed because it is both successive and untimely.
court takes judicial notice of petitioner's earlier
habeas corpus action, Rosky v. Byrne, No.
3:16-cv-00156-MMD-VPC. Petitioner has been convicted in state
court of indecent exposure and sexual assault. His appeals
and post-conviction petitions in state court ultimately have
been unsuccessful. Petitioner then filed Rosky v.
Byrne in this court. This court dismissed Rosky v.
Byrne as untimely, the United States Court of Appeals
for the Ninth Circuit denied a certificate of appealability,
and the Supreme Court of the United States denied a petition
for a writ of certiorari.
filed his petition on a form used for petitions under 28
U.S.C. § 2241. He insists that he is not attacking his
judgment of conviction. He further insists that the court
treat the petition as under § 2241 and not under any
other provision. Petition, at 4-5 (ECF No. 1, at 9-10).
However, 28 U.S.C. § 2254(a) states, "The Supreme
Court, a Justice thereof, a circuit judge, or a district
court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States." Section 2254(a) does not limit
itself to challenges to state-court judgments of conviction.
Section 2254(a) encompasses all challenges to custody when
that custody is pursuant to a state-court judgment of
conviction. Petitioner cannot avoid the application of §
2254, and its associated procedural requirements, simply by
saying that he is not challenging the validity of his
state-court judgment of conviction. Petitioner will need to
file an amended petition on the court's § 2254 form.
If petitioner continues to insist that the court not treat
his petition as under § 2254, then the court will
dismiss the action.
this action is under § 2254, petitioner also has two
procedural problems. First, this action appears to be an
unauthorized second or successive petition under 28 U.S.C.
§ 2244(b). This court dismissed Rosky v. Byrne
as untimely. "[D]ismissal of a section 2254 habeas
petition for failure to comply with the statute of
limitations renders subsequent petitions second or successive
for purposes of . . . 28 U.S.C. § 2244(b)."
McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir.
2009). Petitioner must first obtain authorization from the
court of appeals before this court can consider his petition.
28 U.S.C. § 2244(b)(3). Nothing in the documents that
petitioner has filed indicates that he has received such
authorization. Petitioner needs to show cause that the court
should not dismiss this action as a second or successive
petition under 28 U.S.C. § 2244(b).
this action appears to be untimely under 28 U.S.C. §
2244(d)(1). Again, this court dismissed Rosky v.
Byrne as untimely, after giving petitioner the
opportunity to show cause why that action should not be
dismissed. Nothing appears to have changed since the
dismissal of Rosky v. Byrne. Petitioner needs to
show case that the court should not dismiss this action as
untimely under 28 U.S.C. § 2244(d)(1).
has submitted an application to proceed in forma
pauperis. The court denies the application as moot
because petitioner paid the filing fee when he commenced this
THEREFORE IS ORDERED that the clerk of the court shall send
petitioner a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 form with instructions. Petitioner
shall have thirty (30) days from the date that this order is
entered in which to file an amended petition to correct the
noted deficiencies. Neither the foregoing deadline nor any
extension thereof signifies or will signify any implied
finding of a basis for tolling during the time period
established. Petitioner at all times remains responsible for
calculating the running of the federal limitation period
under 28 U.S.C. § 2244(d)(1) and timely asserting
claims. Failure to comply with this order will result in the
dismissal of this action.
FURTHER IS ORDERED that petitioner shall clearly title the
amended petition as such by placing the word
“AMENDED” immediately above “Petition for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254” on page 1 in the caption, and petitioner shall
place the case number, 3:19-cv-00130-HDM-CBC, above the word
“AMENDED.” IT FURTHER IS ORDERED that petitioner
will have thirty (30) days from the date of entry of this
order to show cause why the court should not dismiss this
action both because it is an unauthorized second or
successive petition under 28 U.S.C. § 2244(b) and
because it is untimely under 28 U.S.C. § 2244(d)(1).
FURTHER IS ORDERED that the clerk of the court file the
application to proceed in forma pauperis.
FURTHER IS ORDERED that the application to proceed in
forma pauperis is DENIED as moot.
FURTHER IS ORDERED that the clerk shall add Aaron Ford,
Attorney General for the State of Nevada, as counsel for
FURTHER IS ORDERED that the clerk shall electronically serve
upon respondents a copy of the petition and this order.
Respondents' counsel shall enter a notice of appearance
herein within twenty (20) days of entry of this order, but no