United States District Court, D. Nevada
GENE A. K. ALLEN, Petitioner,
ISIDRO BACA, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
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.
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.
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,
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,
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.
has continued to file multiple petitions in the following 12
Second or Successive Petition
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).
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.
In the Alternative, the ...