Mariscal v. Neven et al

Filing 5

ORDER that this action is DISMISSED with prejudice as a successive petition. All pending motions in this action are DENIED. The Clerk shall enter judgment accordingly. Petitioner is DENIED A CERTIFICATE OF APPEALABILITY. Signed by Judge Kent J. Dawson on 11/23/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DAVID MARISCAL,

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Petitioner,
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vs.
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DWIGHT NEVEN, et al.,
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Respondents.
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____________________________________/

2:11-cv-01846-KJD-CWH
ORDER

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,
by a Nevada state prisoner.
The petition in the instant action challenges petitioner’s state conviction in case number

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CR-94-0080. Petitioner previously challenged this same conviction in this Court, filed under case

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number 3:07-cv-00296-LRH-VPC. By order filed May 12, 2010, the Court denied the petition on

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the merits in case number 3:07-cv-00296-LRH-VPC. (ECF No. 50). Judgment was entered that

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same date. (ECF No. 51).

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“Before a second or successive application permitted by this section is filed in the district

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court, the applicant shall move in the appropriate court of appeals for an order authorizing the district

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court to consider the application.” 28 U.S.C. § 2244(3)(A). The instant petition is a successive

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petition, which requires petitioner to seek and obtain leave of the Ninth Circuit Court of Appeal to

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pursue. See 28 U.S.C. § 2244(b)(3) et seq. The petitioner has not presented this Court with proof

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that he has obtained leave to file a successive petition from the Court of Appeals. Therefore, the

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petition will be dismissed.

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In order to proceed with any appeal, petitioner must receive a certificate of appealability. 28

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U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951

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(9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a

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petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a

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certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84

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(2000). “The petitioner must demonstrate that reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In

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order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are

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debatable among jurists of reason; that a court could resolve the issues differently; or that the

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questions are adequate to deserve encouragement to proceed further. Id.

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Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing Section

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2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the

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order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice

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of appeal and request for certificate of appealability to be filed. Rule 11(a). This Court has

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considered the issues raised by petitioner, with respect to whether they satisfy the standard for

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issuance of a certificate of appealability, and determines that none meet that standard. The Court

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will therefore deny petitioner a certificate of appealability.

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IT IS THEREFORE ORDERED that this action is DISMISSED with prejudice as a
successive petition.

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IT IS FURTHER ORDERED that all pending motions in this action are DENIED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly.

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IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF
APPEALABILITY.
DATED: November 23, 2011

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UNITED STATES DISTRICT JUDGE
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