Nilsen v. Paramo

Filing 7

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 4/1/2016. Signed by Judge Vince Chhabria on 3/15/2016. (knm, COURT STAFF) (Filed on 3/15/2016)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

VANCE NILSEN,

Case No. 16-cv-00865-VC

Plaintiff,
ORDER TO SHOW CAUSE

v.

Re: Dkt. No. 1
DANIEL PARAMO,
Defendant.

Nilsen is ordered to show cause why his habeas petition should not be dismissed for lack
of jurisdiction. The petition alleges that Nilsen previously filed at least one other habeas petition
contesting the same custodial sentence. Petition at ¶¶13-18; see also id. at ¶¶24-28, 31-32.
Nilsen's current petition is therefore second or successive. See Burton v. Stewart, 549 U.S. 147,
152-53 (2007) (per curiam). Because Nilsen's petition is second or successive, this Court lacks
jurisdiction over it unless Nilsen has obtained an order from the U.S. Court of Appeals for the
Ninth Circuit authorizing this Court to consider the petition. Id. at 157; see 28 U.S.C.
§ 2244(b)(3)(A). Nilsen's petition (which purports to contain a complete record of legal action
taken in this case, Petition at ¶33) does not allege that he has obtained such an order. Thus, it
appears from the face of the petition that the Court lacks jurisdiction in this case.1

1

Nilsen argues that he is actually innocent of special circumstances torture. Although a
sufficient showing of actual innocence would excuse his petition's untimeliness, see McQuiggin
v. Perkins, 133 S. Ct. 1924, 1931-32 (2013), it "[would] not exempt him from the procedural
requirements for second or successive petitions, including the statutory obligation to obtain
Ninth Circuit authorization to file a second or successive petition." Spencer v. Valenzuela, No.
14-cv-5053-GAF, 2014 WL 3362865, at *2 (C.D. Cal. July 8, 2014); see also Gage v. Chappell,

Nilsen's response to this order, which should not exceed ten pages, is due on or before
April 1, 2016.
IT IS SO ORDERED.
Dated: March 15, 2016
______________________________________
VINCE CHHABRIA
United States District Judge

793 F.3d 1159, 1164, 1167-69 (9th Cir. 2015).

2