United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE
Arthur Brewer has filed this pro se petition for
writ of habeas corpus relief under 28 U.S.C. § 2254.
Brewer also filed an application for leave to proceed in
forma pauperis. (ECF No. 1), a motion for appointment of
counsel (ECF No. 3), and a motion to increase his prison copy
work limit (ECF No. 4). I now conduct the initial review
under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts
dismiss the petition for lack of jurisdiction, as it is a
second or successive petition and Brewer has not shown that
he has obtained authorization from the Court of Appeals to
file it. Because I lack jurisdiction over the petition,
Brewer's motions for appointment of counsel, to proceed
in forma pauperis, and to extend his copy work will
be denied as moot.
challenges his 2006 judgment of conviction entered in Eighth
Judicial District Court No. 06C223499. ECF No. 1-1 at 1-2.
Judicially noticeable facts indicate that Brewer was
sentenced to a term of 10 to 25 years as a large habitual
criminal. ECF No. 2:11-cv-1556-PMP-PAL (Ex. 2).
previously challenged that state court judgment of conviction
in federal court No. 2:11-cv-1556-PMP-PAL. That petition was
dismissed as untimely and judgment was entered. See
No. 2:11-cv-1556-PMP-PAL, ECF Nos. 11 & 12. Brewer
appealed and certificate of appealability was denied.
Id. (ECF No. 20). Brewer acknowledges that he
previously challenged the judgment of conviction at issue in
this case in federal court. ECF No. 1-1 at 2.
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). A petition is second or successive if it
attacks the same judgment of conviction as a prior federal
petition that was decided on its merits and raises claims
based on facts that had occurred by the time of the prior
petition. 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. . . .”).
although Brewer's claims facially involve good time
credits, he does not argue that he is being denied good time
credits to which he is entitled. Rather, what Brewer argues
is that the habitual criminal statute under which he was
sentenced, Nev. Rev. Stat. § 207.101(b), is
unconstitutional. This is a claim based on facts that existed
at the time of his prior federal petition. While Brewer
asserts that the facts underlying his claim were not known to
him until the Nevada Supreme Court's decision in
Williams v. State Dep't of Corr., 402 P.3d 1260,
1261 (Nev. 2017), that is not the same thing as saying that
the facts did not exist at the time of his prior petition.
Rather, all of Brewer's claims are based on the central
premise that, under Nev. Rev. Stat. § 207.010,
defendants convicted of Category C and D crimes are treated
the same as defendants convicted of Category A crimes. This
set of facts existed at the time of the prior federal
petition and thus could have been raised in the prior
petition. As such, the instant petition is second or
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.
Brown, 889 F.3d at 667. Brewer 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
THEREFORE ORDERED that the Clerk of Court shall FILE the
petition (ECF No. 1-1).
FURTHER ORDERED that the petition is DISMISSED for lack of
FURTHER ORDERED that all pending motions (ECF Nos. 1,
3 & 4) are DENIED
FURTHER ORDERED that Brewer is DENIED a certificate of
appealability, as jurists of reason would not find the
dismissal of the petition for ...