Covarrubias v. State of Nevada et al

Filing 7

USCA ORDER Denying 1 Petition for Writ of Habeas Corpus filed by Phillip A. Covarrubias. (Copies have been distributed pursuant to the NEF - DC)

Case: 14-73257, 02/27/2015, ID: 9437798, DktEntry: 5, Page 1 of 2

FILED
FEB 27 2015

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PHILIP ARTHUR COVARRUBIAS,
Petitioner,
v.
STATE OF NEVADA and ATTORNEY
GENERAL STATE OF NEVADA,

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

No. 14-73257
D.C. No. 2:14-cv-01200-GMN-PAL
District of Nevada,
Las Vegas

ORDER

Respondents.

Before:

O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.

We treat the “Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254,” transferred by the district court on October 20, 2014, as an application for
authorization to file a second or successive 28 U.S.C. § 2254 petition in the district
court. The application is denied.
To the extent petitioner claims a violation under Brady v. Maryland, 373
U.S. 83 (1963), petitioner has not established that the alleged newly discovered
evidence supporting his claim is “material.” See United States v. Lopez, 577 F.3d
1053, 1064 (9th Cir. 2009) (“[T]he undisclosed evidence must be material.
Regardless of whether a Brady claim is raised in a first petition or a second-in-time
petition, petitioner can prevail and obtain a new trial only if ‘there is a reasonable

Case: 14-73257, 02/27/2015, ID: 9437798, DktEntry: 5, Page 2 of 2

probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” (citations omitted)); see also King v.
Trujillo, 638 F.3d 726, 729 (9th Cir. 2011) (per curiam).
Additionally, in relation to petitioner’s Brady claim and all remaining
claims, petitioner has not made a prima facie showing under 28 U.S.C.
§ 2244(b)(2) that:
(A) the claim relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and (ii) the facts
underlying the claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
Any pending motions are denied as moot.
No petition for rehearing or motion for reconsideration shall be entertained
in this case. See 28 U.S.C. § 2244(b)(3)(E).

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