Nicholson v. Gentry et al

Filing 3

ORDER. IT IS THEREFORE ORDERED that 1 petitioner's application to proceed in forma pauperis is DENIED as incomplete. IT IS FURTHER ORDERED that the clerk shall detach and file 1 -1 the petition and shall serve the petition and a copy o f 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 FUR THER ORDERED that because reasonable jurists would not find the court's conclusions to be debatable or wrong, a certificate of appealability is DENIED. IT IS FURTHER ORDERED that the clerk shall enter judgment accordingly and close this case. Signed by Judge James C. Mahan on 12/19/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DARION NICHOLSON,

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Case No. 2:16-cv-02553-JCM-NJK
Petitioner,

ORDER

v.
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JO GENTRY, et al.,
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Respondents.
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Petitioner Darion Nicholson has submitted a pro se habeas petition (ECF No. 1-

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1). His application to proceed in forma pauperis is incomplete because he has failed to

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include the required inmate account statements (ECF No. 1). LSR 1-2. This action,

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therefore, has not been properly commenced.

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Moreover, this court may take judicial notice of its docket, and Nicholson has

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previously filed at least two federal habeas petitions challenging the same judgment of

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conviction, C204941. 28 U.S.C. § 2244 (b)(3)(A) provides: “[b]efore a second or

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successive application permitted by this section is filed in the district court, the applicant

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shall move in the appropriate court of appeals for an order authorizing the district court

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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

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merits and renders a subsequent petition second or successive for purposes of 28

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U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009);

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Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).

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On June 9, 2009, Nicholson’s habeas petition challenging the same state
judgment of conviction in federal case no. 2:06-cv-01118-KJD-GWF was denied, and
judgment was entered on June 11, 2009 (2:06-cv-01118-KJD-GWF, ECF Nos. 14, 15).
Moreover, Nicholson recently attempted to initiate a federal habeas case challenging
the same judgment of conviction in case no. 2:16-cv-02236-JAD-NJK. The court
dismissed that action for failure to file the requisite financial documentation in support of
the application to proceed in forma pauperis (2:16-cv-02236-JAD-NJK, ECF No. 3).
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, this action is dismissed as improperly commenced and as a second and
successive petition.
IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma
pauperis (ECF No. 1) is DENIED as incomplete.
IT IS FURTHER 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 because reasonable jurists would not find the
court’s conclusions to be debatable or wrong, a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the clerk shall enter judgment accordingly and
close this case.

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December 19, 2016.
DATED: 19 December 2016.
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JAMES C. MAHAN
UNITED STATES DISTRICT JUDGE

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