Rodriguez v. McDaniels et al

Filing 16

ORDER Denying Petitioner's 11 Motion for Leave to File Longer Than Normal First Amended Petition for Writ of Habeas Corpus and 12 Motion to Extend Prison Copywork Limit. Petitioner is denied a certificate of appealability with respect to this order. Signed by Judge James C. Mahan on 4/24/2017. (Copies have been distributed pursuant to the NEF - cc: USCA - SLD)

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1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 DARIO RODRIGUEZ, 9 Petitioner, 2:16-cv-00629-JCM-VCF 10 vs. 11 12 13 ORDER E.K McDANIEL, et al., Respondents. 14 15 This is a habeas corpus proceeding under 28 U.S.C. § 2254. On October 13, 2016, while his 16 appeal was pending in the court of appeals, petitioner filed, in this court, a “Motion for Leave to File 17 Longer Than Normal First Amended Petition for Writ of Habeas Corpus (ECF No. 11) and a “Motion 18 to Extend Prison Copywork Limit” (ECF No. 12). Because the court of appeals has rendered a final 19 decision denying petitioner’s appeal (ECF No. 14), this court has arguably reacquired jurisdiction over 20 this proceeding. See Sgaraglino v. State Farm Fire & Cas. Co., 896 F.2d 420, 421 (9th Cir.1990) 21 (“Upon issuance of the mandate, the case was returned to the district court's jurisdiction”). Even so, 22 this court declines to permit petitioner to file an amended habeas petition. 23 Once final judgment is entered in a case, a motion to amend can be entertained only if the 24 judgment has been reopened by way of a motion for new trial or for relief from judgment under 25 Fed.R.Civ.P. 59 and 60. Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996); see also Jacobs v. 26 Tempur–Pedic Intern., Inc., 626 F.3d 1327, 1344 (11th Cir. 2010). That has not occurred in this case. 27 In addition, the dismissal of petitioner’s prior petition for failure to state a claim constitutes a dismissal 28 on the merits. See, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995); Federated Dept. Stores, 1 Inc. v. Moitie, 452 U.S. 394, 399 n. 3 (1981) (noting that a dismissal for failure to state a claim pursuant 2 to Fed.R.Civ.P. 12(b)(6) is a judgment on the merits); Williams v. Armontrout, 855 F.2d 578, 580 (8th 3 Cir. 1988) (dismissal for legal insufficiency, or not stating facts constituting a violation of constitutional 4 rights as a matter of law, is a decision on the merits). Thus, petitioner’s proposed amended petition is 5 properly characterized as a second or successive petition under 28 U.S.C. § 2244(b). McNabb v. Yates, 6 576 F.3d 1028, 1029 (9th Cir. 2009) (noting that a habeas petition is second or successive for the 7 purposes of § 2244(b) if it raises claims that were or could have been adjudicated on the merits). That 8 means this court is without jurisdiction to entertain it until petitioner receives authorization from the 9 court of appeals to file it. 28 U.S.C. § 2244(b)(3); Burton v. Stewart, 549 U.S. 147, 157 (2007) 10 IT IS THEREFORE ORDERED that petitioner’s “Motion for Leave to File Longer Than 11 Normal First Amended Petition for Writ of Habeas” Corpus (ECF No. 11) and a “Motion to Extend 12 Prison Copywork Limit” (ECF No. 12) are both DENIED. 13 14 15 IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability with respect to this order. DATED: April 24, 2017. 16 17 18 __________________________________ UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 -2-

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