United States District Court, D. Nevada
FREDYS A. MARTINEZ, Petitioner,
ISIDRO VACA, et al., Respondents.
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
a habeas corpus proceeding under 28 U.S.C. § 2254
brought by Petitioner Fredys A. Martinez, a person
incarcerated in Nevada who is proceeding pro se.
Before the Court is Martinez's Applications to Proceed
In Forma Pauperis (ECF Nos. 1, 9), Motion for
Appointment of Counsel (ECF No. 8), and Amended Petition for
Writ of Habeas Corpus (ECF No. 7). Following review under the
Rules Governing Section 2254 Cases, the Court finds that the
amended petition is second or successive and therefore must
be dismissed for lack of jurisdiction. As the Court lacks
jurisdiction over the amended petition, all other pending
motions will accordingly be denied.
to Habeas Rule 4, the assigned judge must examine the habeas
petition and order a response unless it “plainly
appears” that the petitioner is not entitled to relief.
See Valdez v. Montgomery, 918 F.3d 687, 693 (9th
Cir. 2019). This rule allows courts to screen and dismiss
petitions that are patently frivolous, vague, conclusory,
palpably incredible, or false. See Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). The court
may also dismiss claims at screening for procedural defects.
See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.
initiated this case on August 19, 2019, by filing a document
he called a “Motion of Appeal Actually Innocent”
(ECF No. 1-1). The motion stated that he is “actually
innocent of the crime” and made an unspecific request
for a “document to enable him to better prepare a
petition for writ NRS 34.726.” (Id.) The Court
entered an order requiring Martinez to file a proper habeas
petition and deferred consideration of his request for in
forma pauperis (“IFP”) status until such
petition was filed. (ECF No. 3.) The Court noted that,
“because Martinez previously filed a federal habeas
petition, which was dismissed as untimely, his current
‘motion' may be an attempt to file a second or
successive petition.” (Id.) See also
Martinez v. Palmer, No. 3:10-cv-00777-LRH-VPC (D. Nev.
Filed Dec. 14, 2010) (“2010 Case”).
filed an Amended Petition for Writ of Habeas Corpus (ECF No.
7) on September 25, 2019. He challenges a May 2007 judgment
of conviction entered by the Eighth Judicial District Court
for Clark County. See State of Nevada v. Martinez,
No. 06C226586. Martinez acknowledges that he previously
challenged this same judgment of conviction in federal court.
(ECF No. 7 at 4.) The Federal Public Defender's Office
was appointed to represent Martinez in the 2010 Case. On
February 25, 2013, the court issued an order in the 2010 Case
granting the respondents' motion to dismiss, dismissing
the petition with prejudice as untimely, and entering
judgment accordingly. However, the court granted a
certificate of appealability on the issue of equitable
tolling. Martinez appealed, and the Ninth Circuit affirmed
the district court's order dismissing the petition.
See Martinez v. Palmer, No. 13-15537 (9th Cir. Apr.
the prior federal petition was dismissed with prejudice,
Martinez attacks the same judgment of conviction, and the
claims Martinez raises here are based on facts that had
occurred by the time of the prior federal petition, his
amended 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 (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. . . .”).
also alleges he is “actually innocent” pursuant
to 28 U.S.C. § 2244(d)(1). “[A]ctual innocence, if
proved, serves as a gateway through which a petitioner may
pass” after the statute of limitations has expired.
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)
(citing Schlup v. Delo, 513 U.S. 298 (1995);
House v. Bell, 547 U.S. 518 (2006)). “To be
credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial.”
Schlup, 513 U.S. at 324. The Supreme Court has
cautioned that “tenable actual-innocence gateway pleas
are rare: ‘[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable
doubt.'” McQuiggin, 569 U.S. at 386
(quoting Schlup, 513 U.S. at 329; citing
House, 547 U.S. at 538 (emphasizing that the
Schlup standard is “demanding” and
seldom met)). Here, the amended petition does not allege that
new reliable evidence supports Martinez's innocence.
Rather, the amended petition merely repeats allegations and
claims from the 2010 Case regarding ineffective assistance of
counsel and inadequacy of evidence at trial. Martinez has
failed to demonstrate that the amended petition is not
successive or that he has a credible claim of actual
28 U.S.C. § 2244(b)(3), before a second or successive
petition is filed in the federal district court, a 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. Martinez 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 jurisdiction. As the
Court lacks jurisdiction over the petition, all of
Martinez's other motions are hereby denied.
therefore ordered that this action is dismissed without
prejudice for lack of jurisdiction.
further ordered that Petitioner Fredys A. Martinez's
Applications to Proceed In Forma Pauperis (ECF Nos.
1, 9), and Motion for Appointment of Counsel (ECF No. 8) are
further ordered that Martinez 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, the Clerk of Court will add
Nevada Attorney General Aaron D. Ford as counsel for
Respondents and informally serve the Nevada Attorney General
by 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 further directed to enter final judgment
accordingly, dismissing this action ...