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Allen v. Baca

United States District Court, D. Nevada

July 12, 2019

GENE A. K. ALLEN, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Petitioner has filed an application for leave to proceed in forma pauperis (ECF No. 1), a motion for appointment of counsel (ECF No. 3), a motion requesting relief (ECF No. 4), and a petition for a writ of habeas corpus. Petitioner is unable to pay the filing fee.

         Petitioner has used the form for a petition under 28 U.S.C. § 2241. However, Petitioner is in state custody pursuant to a judgment of conviction of a state court, and 28 U.S.C. § 2254 applies. The Court construes the petition as being under 28 U.S.C. § 2254. The Court dismisses the action because this is a successive petition filed without the required authorization from the court of appeals. See 28 U.S.C. § 2244(b). Alternatively, the petition is without merit on its face. See Rule 4, Rules Governing Section 2254 Cases in the United States District Courts.

         II. BACKGROUND

         On April 7, 2003, pursuant to a guilty plea, Petitioner was convicted of sexual assault and lewdness with a child. Petitioner's direct appeal was unsuccessful. In the following 16 years, Petitioner has filed many post-conviction habeas corpus petitions and other motions in the state courts. On May 15, 2007, out of frustration of Petitioner's continued frivolous filings, the state district court entered an amended judgment of conviction that removed 310 days of credit for time served. Later that same day, the state district court realized that it could not take away those credits as punishment for frivolous filings, and the state district court entered a second amended judgment of conviction that restored all the credits for time served. See Allen v. State, No. 49612 (Nev. September 12, 2007).[1]

         Petitioner also has filed many habeas corpus petitions in this court in those 16 years. In Allen v. State, 2:07-cv-00226-PMP-LRL, ECF No. 2, at 2, the court noted:

Allen has filed at least 14 habeas petitions in this court alone, all attacking the same conviction. [Footnote: See cases, 3:05-cv-00616-LRH-VPC, 3:05-cv-00639-LRH-RAM, 3:03-cv-00414-ECR-VPC, 3:03-cv-00465-LRH-RAM, 3:03-cv-00519-ECR-RAM, 3:03-cv-00541-ECR-VPC, 3:03-cv-00672-LRH-RAM, 3:03-cv-00692-LRH-RAM, 3:04-cv-00189-ECR-VPC, 3:05-cv-00184-LRHVPC, 3:05-cv-00458-RLH-VPC, 2:03-cv-00770-KJD-PAL, 3:06-cv-00079-LRH-VPC.] On at least two previous occasions, Allen was ordered by the court to submit any and all habeas corpus claims related to his April 7, 2003 conviction in case number 3:03-cv-00414-ECR-VPC. (See Nos. 3:03-cv-00519-ECR-RAM, 3:03-cv-00541-ECR-VPC). Allen repeatedly ignored those court orders, and in fact filed eight new habeas lawsuits after those orders were issued. Allen has also had at least two habeas corpus petitions dismissed as successive petitions pursuant to 28 U.S.C.§2244(b)(3)(A). (See Nos. 3:05-00639-LRH-RAM, and 3:06-cv-00079-LRH-VPC). In both of those cases, Allen was informed that he could not pursue any additional habeas corpus petitions until he moved the United States Court of Appeals for the Ninth Circuit for an order authorizing this court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A); Rule 9 of the Rules Governing Section 2254 Cases. Allen has never done so.

         Petitioner has continued to file multiple petitions in the following 12 years.[2]

         III. DISCUSSION

         A. Second or Successive Petition

         This action is a second or successive habeas corpus petition that is not authorized by the court of appeals under 28 U.S.C. § 2244(b). The original judgment of conviction entered in 2003 no longer is the operative judgment of conviction. The second amended judgment of conviction entered on May 15, 2007, is the operative judgment of conviction. The second amended judgment likely reset the successive-petition bar of § 2244(b). See Magwood v. Patterson, 561 U.S. 320 (2010); Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012). However, in Allen v. LaGrand, No. 3:11-cv-00138-RCJ-VPC, the Court denied a habeas corpus petition because Petitioner made only claims of violation of state law. The court of appeals affirmed. Consequently, even taking the second amended judgment into account, this action is a second or successive petition, and Petitioner has not obtained authorization from the court of appeals to commence the action. See 28 U.S.C. § 2244(b).

         The court has told Petitioner repeatedly, in many different actions, what he needs to do before he can file a second or successive petition in this Court. He continues to not follow instructions. For these reasons, the Court will not direct Petitioner to show cause why this action should not be dismissed. The Court also will not refer this action to the court of appeals, because that would not be in the interests of justice. See Ninth Circuit Rule 22-3(a). The Court simply will dismiss the action.

         B. In the Alternative, the ...


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