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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 DARION NICHOLSON, 10 Case No. 2:16-cv-02553-JCM-NJK Petitioner, ORDER v. 11 JO GENTRY, et al., 12 Respondents. 13 14 Petitioner Darion Nicholson has submitted a pro se habeas petition (ECF No. 1- 15 1). His application to proceed in forma pauperis is incomplete because he has failed to 16 include the required inmate account statements (ECF No. 1). LSR 1-2. This action, 17 therefore, has not been properly commenced. 18 Moreover, this court may take judicial notice of its docket, and Nicholson has 19 previously filed at least two federal habeas petitions challenging the same judgment of 20 conviction, C204941. 28 U.S.C. § 2244 (b)(3)(A) provides: “[b]efore a second or 21 successive application permitted by this section is filed in the district court, the applicant 22 shall move in the appropriate court of appeals for an order authorizing the district court 23 to consider the application.” Where a petition has been dismissed with prejudice as 24 untimely or because of procedural default, the dismissal constitutes a disposition on the 25 merits and renders a subsequent petition second or successive for purposes of 28 26 U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009); 27 Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005). 28 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 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. 24 December 19, 2016. DATED: 19 December 2016. 25 JAMES C. MAHAN UNITED STATES DISTRICT JUDGE 26 27 28 2

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