Petty v. Gentry et al

Filing 5

ORDER denying Petitioner's 1 Motion/Application for Leave to Proceed in forma pauperis denied as moot. Petitioner's 3 Motion to Appoint Counsel is denied. Petitioner shall have 60 days from entry of this order and shall SHOW CAUSE in writing why the petition should not be dismissed for lack of jurisdiction as a successive petition. Signed by Judge Richard F. Boulware, II on 9/29/2017. (Copies have been distributed pursuant to the NEF - BEL)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 ANTHONY EDWARD PETTY, 8 Case No. 2:16-cv-02105-RFB-NJK Petitioner, ORDER 9 10 11 vs. JO GENTRY, et al., Respondents. 12 13 This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s 14 application (ECF No. 1) to proceed in forma pauperis, on his motion (ECF No. 3) for 15 appointment of counsel, and for initial review under Rule 4 of the Rules Governing Section 16 2254 Cases. Petitioner subsequently paid the filing fee, and the Court therefore will deny the 17 pauper motion without prejudice as moot and proceed to initial review. 18 Following initial review, it appears that the Court lacks jurisdiction over the petition 19 because it constitutes a successive petition. Petitioner therefore will be directed to show 20 cause why the petition should not be dismissed without prejudice for lack of jurisdiction. 21 Petitioner Anthony Edward Petty seeks to set aside his January 8, 2001, Nevada state 22 judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a 23 deadly weapon. He is serving two consecutive sentences of life with the possibility of parole 24 after twenty years on each sentence. 25 Petitioner previously sought federal habeas relief in this Court challenging the same 26 January 8, 2001, judgment of conviction in Petty v. Schomig, No. 2:04-cv-00947-RLH-LRL. 27 The Court dismissed that prior petition on the merits on March 20, 2006, and the Court of 28 Appeals denied a certificate of appealability on December 26, 2006. 1 Review of the online records of the state district court reflects that there have been no 2 intervening amended or corrected judgments of conviction filed in that court subsequent to 3 the January 8, 2001, judgment.1 4 Petitioner asserts in response to the pertinent inquiry in the federal petition form that 5 he has not obtained permission to file a successive petition from the Court of Appeals. (ECF 6 No. 1-1, at 2.) The claims in the current petition clearly challenge the January 8, 2001, 7 conviction. 8 Under 28 U.S.C. § 2244(b)(3), before a second or successive petition is filed in the 9 federal district court, the petitioner must move in the court of appeals for an order authorizing 10 the district court to consider the petition. A federal district court does not have jurisdiction to 11 entertain a successive petition absent such permission. E.g., Burton v. Stewart, 549 U.S. 12 147, 149 & 152-53 (2007). In the present petition, petitioner seeks to challenge the same 13 judgment of conviction that he previously challenged in No. 2:04-cv-00947. The present 14 petition constitutes a second or successive petition because that prior petition was dismissed 15 on the merits. See, e.g., Henderson v. Lampert, 396 F.3d 1049, 1052-53 (9th Cir. 2005). 16 Petitioner accordingly must show cause why the petition should not be dismissed for lack of 17 jurisdiction as a successive petition. 18 Turning to the motion for appointment of counsel, the Sixth Amendment right to 19 counsel does not apply in habeas corpus actions. See Knaubert v. Goldsmith, 791 F.2d 722, 20 728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) authorizes a district court to 21 appoint counsel to represent a financially eligible habeas petitioner whenever "the court 22 determines that the interests of justice so require." The decision to appoint counsel lies within 23 the discretion of the court; and, absent an order for an evidentiary hearing, appointment is 24 25 26 27 28 1 The Court takes judicial notice of its records in the prior action filed in this Court by petitioner as well as of the online docket records of the Eighth Judicial District Court for the State of Nevada. See Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). The online docket records of the state district court may be accessed from: -2- 1 mandatory only when the circumstances of a particular case indicate that appointed counsel 2 is necessary to prevent a due process violation. See, e.g., Chaney v. Lewis, 801 F.2d 1191, 3 1196 (9th Cir.1986). 4 The Court does not find that the interests of justice require the appointment of counsel 5 herein. Petitioner has demonstrated an adequate ability to address the potential issues 6 presented in this case proceeding in proper person. The Court further is not persuaded that 7 appointment of counsel is required or warranted for petitioner to respond to the order to show 8 cause. Petitioner must respond to the show-cause order pro se without counsel. 9 IT THEREFORE IS ORDERED that petitioner’s application (ECF No. 1) to proceed in 10 forma pauperis is DENIED without prejudice as moot following upon petitioner’s payment of 11 the filing fee. 12 13 IT FURTHER IS ORDERED that petitioner’s motion (ECF No. 3) for appointment of counsel is DENIED. 14 IT FURTHER IS ORDERED that the Clerk of Court shall file the petition2 and that, 15 within sixty (60) days of entry of this order, petitioner shall SHOW CAUSE in writing why the 16 petition should not be dismissed for lack of jurisdiction as a successive petition. If petitioner 17 does not timely respond to this order, the petition will be dismissed as a successive 18 petition without further advance notice. 19 IT IS FURTHER ORDERED that all assertions of fact made by petitioner in response 20 to this show-cause order must be detailed, must be specific as to time and place, and must 21 be supported by competent evidence. The Court will not consider any assertions of fact that 22 are not specific as to time and place, that are not made pursuant to a declaration under 23 penalty of perjury based upon personal knowledge, and/or that are not supported by 24 competent evidence filed by petitioner in the federal record. Petitioner thus must attach copies 25 26 27 2 28 Nothing herein suggests that the current petition is free of other deficiencies, including, but not limited to untimeliness under 28 U.S.C. § 2244(d). -3- 1 of all materials upon which he bases his argument that the petition should not be dismissed 2 as a successive petition. Unsupported assertions of fact will be disregarded. 3 4 DATED this 29th day of September, 2017. 5 6 7 8 _________________________________ RICHARD F. BOULWARE, II United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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