Collins v. State of Nevada et al

Filing 6

ORDER that the Clerk shall detach and file the petition (ECF No. 1-1) and shall serve the petition and a copy of this order on respondents. FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada Attorney General, as counsel for respond ents. FURTHER ORDERED that the petition is DISMISSED with prejudice as successive. FURTHER ORDERED that a certificate of appealability is DENIED. FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. Signed by Chief Judge Gloria M. Navarro on 12/19/16. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

LEROY COLLINS,

10

Case No. 2:16-cv-01090-GMN-VCF
Petitioner,

ORDER

v.
11
STATE OF NEVADA, et al.,
12
Respondents.
13
Petitioner Leroy Collins has submitted a pro se 28 U.S.C. § 2254 habeas corpus

14
15

petition (ECF No. 1-1). He has now paid the filing fee (ECF No. 5). However, Collins’

16

petition shall be dismissed as successive.

17

This court’s docket reflects that Collins has previously filed at least one federal

18

habeas petition challenging the same judgment of conviction, C082510. 28 U.S.C. §

19

2244(3)(A) provides: “[b]efore a second or successive application permitted by this

20

section is filed in the district court, the applicant shall move in the appropriate court of

21

appeals for an order authorizing the district court to consider the application.” Where a

22

petition has been dismissed with prejudice as untimely or because of procedural default,

23

the dismissal constitutes a disposition on the merits and renders a subsequent petition

24

second or successive for purposes of 28 U.S.C. § 2244. McNabb v. Yates, 576 F.3d

25

1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.

26

2005).

27
28

On January 7, 2016, Collins’ habeas petition challenging the same state
judgment of conviction in federal case no. 2:13-cv-00011-JAD-NJK was denied, and
1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

judgment was entered (2:13-cv-00011-JAD-NJK, ECF Nos. 19, 22). The instant petition
is, therefore, a successive petition, which requires petitioner to seek and obtain leave of
the appeals court to pursue. See 28 U.S.C. § 2244(b)(3) et seq. Accordingly, Collins’
petition is dismissed with prejudice as successive.
Reasonable jurists would not find the court’s conclusions to be debatable or
wrong, and the court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the Clerk shall detach and file the petition
(ECF No. 1-1) and shall serve the petition and a copy of this order on respondents.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that the petition is DISMISSED with prejudice as
successive.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.

16
DATED: 19 December 2016.
17
GLORIA M. NAVARRO, CHIEF JUDGE
UNITED STATES DISTRICT COURT

18
19
20
21
22
23
24
25
26
27
28
2