Hernandez v. Bonaventure et al

Filing 7

ORDER. IT IS ORDERED that the Clerk shall DETACH and FILE 1 -1 the petition.IT IS FURTHER ORDERED that 3 petitioner's application to proceed in forma pauperis is DENIED as moot. IT IS FURTHER ORDERED that 6 petitioner' s motion for status check is DENIED as moot.IT IS FURTHER ORDERED that the petition is DISMISSED with prejudice as a successive petition. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that the Cle rk shall add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents. IT IS FURTHER ORDERED that the Clerk shall electronically serve the petition, along with a copy of this order, on respondents. IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case. Signed by Chief Judge Gloria M. Navarro on 11/6/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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ESTEBAN HERNANDEZ,

Case No. 2:16-cv-02345-GMN-GWF

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Petitioner,
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ORDER

v.
JO GENTRY, et al.,
Respondents.
Petitioner Esteban Hernandez has submitted what he styled as a petition for a
writ of mandamus (ECF No. 1-1). He paid the filing fee, and therefore his application to
proceed in forma pauperis shall be denied as moot.
Hernandez argues that the state district court abused its discretion in sealing a
portion of the negotiations related to his state judgment of conviction for first-degree
murder pursuant to a guilty plea. He asserts that the state district court and defense
counsel colluded during plea negotiations in violation of his Fourteenth Amendment due
process rights. This claim implicates Hernandez’s conviction and/or sentence, and
therefore, it sounds in federal habeas corpus. 28 U.S.C. § 2254(a). Indeed, while
Hernandez has tried to re-formulate this claim here, he has previously raised it in two
federal habeas petitions. 28 U.S.C. § 2244(3)(A) provides: “[b]efore a second or
successive application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application.” Where a petition has been dismissed with prejudice as

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untimely or because of procedural default, the dismissal constitutes a disposition on the
merits and renders a subsequent petition second or successive for purposes of 28
U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009);
Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).
On April 27, 2004, this court dismissed Hernandez’s first petition challenging this
judgment of conviction with prejudice as procedurally barred, and judgment was entered
(2:03-cv-01008-KJD-RJJ, ECF Nos. 9, 10). The Ninth Circuit Court of Appeals affirmed
this court’s order on March 23, 2005 (2:03-cv-01008-KJD-RJJ, ECF No. 16). Moreover,
on June 25, 2014, this court dismissed Hernandez’s second federal habeas petition
challenging this judgment of conviction as second and successive (2:12-cv-02003-JCMPAL, ECF No. 27). This current action, therefore, is actually a second or successive
habeas corpus petition. Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).
Petitioner was required to obtain authorization from the Ninth Circuit Court of appeals
before he could proceed with a second or successive petition. 28 U.S.C. § 2244(b)(3).
Hernandez has not demonstrated that he obtained such authorization. Accordingly, this
petition shall be dismissed with prejudice as a second and successive federal habeas
petition.
Reasonable jurists would not find this conclusion 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).
IT IS FURTHER ORDERED that petitioner’s application to proceed in forma
pauperis (ECF No. 3) is DENIED as moot.
IT IS FURTHER ORDERED that petitioner’s motion for status check (ECF No. 6)
is DENIED as moot.
IT IS FURTHER ORDERED that the petition is DISMISSED with prejudice as a
successive petition.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
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 Clerk shall electronically serve the petition,
along with a copy of this order, on respondents. No response by respondents is
necessary.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly
and close this case.

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DATED: 6 November 2017.

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GLORIA M. NAVARRO, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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