Braunstein v. Williams et al

Filing 14

ORDER that 12 Petitioner's Motion for Reconsideration is DENIED. FURTHER ORDERED that petitioner is denied a certificate of appealability with respect to this order. Signed by Judge Andrew P. Gordon on 8/16/17. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 10 STEVEN BRAUNSTEIN, Petitioner, 11 12 13 14 15 vs. 2:16-cv-02556-APG-NJK ORDER BRIAN WILLIAMS, et al., Respondent. 16 17 This is a habeas corpus proceeding under 28 U.S.C. § 2254. Pending before the court is 18 petitioner’s motion for reconsideration. ECF No. 12. On November 10, 2016, this court dismissed this 19 proceeding for lack of jurisdiction because petitioner had not obtained authorization from the court of 20 appeals before proceeding with a second or successive petition. See 28 U.S.C. § 2244(b)(3). On 21 February 24, 2017, petitioner filed a motion asking the court to reconsider that decision pursuant to Fed. 22 R. Civ. P. 60(b)(6) (ECF No. 5), which this court denied on April 20, 1017 (ECF No. 10). On the same 23 day (i.e., April 20, 1017), the Ninth Circuit Court of Appeals issued an order denying petitioner a 24 certificate of appealability. ECF No. 11. Obviously unaware of the entry of this court’s order denying 25 reconsideration, the Ninth Circuit’s order noted that: “Appellant’s February 24, 2017, motion for 26 reconsideration remains pending in the district court.” Id. 27 Petitioner’s current motion for reconsideration appears to be premised on that minor 28 discrepancy. In denying petitioner’s previous motion for reconsideration, this court, having not 1 received the Ninth Circuit’s order, indicated that petitioner’s pending appeal deprived this court of 2 jurisdiction to rule upon a motion seeking relief from its judgment. ECF No. 10, p. 1. The court further 3 noted that, even if it had jurisdiction to rule upon petitioner’s Rule 60(b) motion, it would deny it and 4 that the motion did not raise a substantial issue for the purposes of Fed. R. Civ. P. 62.1(a)(3). Id., p. 5 2. 6 Setting aside any jurisdictional concerns, petitioner’s current motion for reconsideration, like 7 his prior motion, is devoid of any grounds upon which this court might grant relief under Rule 60(b). 8 In particular, it fails to address why his application for habeas relief is not subject to the limitations 9 imposed on successive petitions under 28 U.S.C. § 2244(b). 10 11 12 13 14 IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF No. 12) is DENIED. IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability with respect to this order Dated: August 16, 2017. DATED: 15 16 17 _________________________________ UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 -2-

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