United States District Court, D. Nevada
RICHARD BOULWARE, II UNITED STATES DISTRICT JUDGE.
Steven Christopher Crain initiated this habeas action by
filing a Petition for Writ of Habeas Corpus (ECF No. 1)
pursuant to 28 U.S.C. § 2254. This matter is before the
Court for initial review under the Rules Governing Section
2254 Cases. For the reasons discussed below, the Court
dismisses the petition as a second or successive petition.
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.
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. Hendricks v. Vasquez,
908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The
Court may also dismiss claims at screening for procedural
defects. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th
challenges a conviction and sentence imposed by the Eighth
Judicial District Court for Clark County, Nevada
(“state court”). State of Nevada v.
Crain, No. 00C166673. In September 2000, Crain pleaded guilty
to one count of attempted lewdness with a child under the age
of 14. The state court sentenced him to 44-120 months of
incarceration along with lifetime supervision. The original
judgment of conviction was entered on October 25, 2000, and
an amended judgment was entered on May 30, 2002. Crain did
not pursue a direct appeal. His sentence was discharged on
March 22, 2006.
current action is Crain's sixth attempt to obtain federal
habeas relief regarding his Nevada conviction. He filed his
first federal petition in this district in June 2009.
Crain v. Nevada Parole and Probation, No.
2:09-cv-1099-RLH-PAL. The Court dismissed the action as
untimely pursuant to 28 U.S.C. § 2244(d). Id.,
ECF No. 5 (Sept. 21, 2009 order). Both this Court and the
Court of Appeals for the Ninth Circuit denied a certificate
of appealability. Crain challenged his conviction again in
Crain v. State of Nevada, No. 2:11-cv-2014-ECR-VCF.
The Court dismissed that action as untimely. Id.,
ECF No. 2 (Jan. 27, 2012 order). The Ninth Circuit dismissed
Crain's subsequent appeal for failure to pay the filing
fees. Crain's third petition in Crain v. Nevada
Parole and Probation, No. 2:14-cv-1056-GMN-NJK, ECF No.
6 (Sept. 30, 2014 order), was dismissed as successive since
federal habeas law required him to obtain authorization from
the Ninth Circuit to file a second or successive petition but
he did not do so. The Court referred the petition to the
Ninth Circuit for consideration as an application to file a
second or successive petition, and the Ninth Circuit denied
it. Crain's fourth petition was also dismissed as second
or successive. Crain v. Nevada Parole and Probation,
No. 2:16-cv-1828-KJD-CWH, ECF No. 4 (Oct. 26, 2016 order).
The Ninth Circuit denied a certificate of appealability. Most
recently, in Crain v. Nevada Parole and Probation,
No. 2:18-cv-0382-JAD-CWH, ECF No. 4 (Mar. 6, 2018 order), the
Ccourt dismissed Crain's fifth petition as second or
successive. He did not seek a certificate of appealability
from the Ninth Circuit.
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. . . .”).
current petition, Crain asserts that his Alford plea was not
voluntary because newly discovered evidence demonstrates that
he is factually innocent. He asserts that his conviction was
obtained through perjured testimony by the victim and her
mother. He further alleges ineffective assistance of counsel
based on his public defender purportedly knowing and allowing
prosecutors to use the perjured testimony, and prosecutorial
misconduct based on an alleged failure to disclose
exculpatory evidence pursuant to Brady v. Maryland,
373 U.S. 83 (1963). These are the same allegations Crain
advanced in his 2009 federal petition and he realleged in
each of his subsequent petitions. His current claims are
therefore based on facts that existed at the time of his 2009
federal petition, which renders the current petition second
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. Crain 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 obtained any such
authorization. Accordingly, the current petition is second or
successive petition and must therefore be dismissed for lack
IS THEREFORE ORDERED THAT:
1. Petitioner Steven Christopher Crain's Petition for
Writ of Habeas Corpus (ECF No. 1) is DISMISSED for lack of
jurisdiction as a second or successive petition.
2. Crain 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.
3. The Clerk of Court shall enter final judgment accordingly
and CLOSE this case.
4. 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 ...