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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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STEVEN BRAUNSTEIN,
Petitioner,

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vs.

2:16-cv-02556-APG-NJK
ORDER

BRIAN WILLIAMS, et al.,
Respondent.

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This is a habeas corpus proceeding under 28 U.S.C. § 2254. Pending before the court is

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petitioner’s motion for reconsideration. ECF No. 12. On November 10, 2016, this court dismissed this

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proceeding for lack of jurisdiction because petitioner had not obtained authorization from the court of

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appeals before proceeding with a second or successive petition. See 28 U.S.C. § 2244(b)(3). On

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February 24, 2017, petitioner filed a motion asking the court to reconsider that decision pursuant to Fed.

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R. Civ. P. 60(b)(6) (ECF No. 5), which this court denied on April 20, 1017 (ECF No. 10). On the same

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day (i.e., April 20, 1017), the Ninth Circuit Court of Appeals issued an order denying petitioner a

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certificate of appealability. ECF No. 11. Obviously unaware of the entry of this court’s order denying

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reconsideration, the Ninth Circuit’s order noted that: “Appellant’s February 24, 2017, motion for

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reconsideration remains pending in the district court.” Id.

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Petitioner’s current motion for reconsideration appears to be premised on that minor

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discrepancy. In denying petitioner’s previous motion for reconsideration, this court, having not

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received the Ninth Circuit’s order, indicated that petitioner’s pending appeal deprived this court of

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jurisdiction to rule upon a motion seeking relief from its judgment. ECF No. 10, p. 1. The court further

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noted that, even if it had jurisdiction to rule upon petitioner’s Rule 60(b) motion, it would deny it and

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that the motion did not raise a substantial issue for the purposes of Fed. R. Civ. P. 62.1(a)(3). Id., p.

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2.

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Setting aside any jurisdictional concerns, petitioner’s current motion for reconsideration, like

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his prior motion, is devoid of any grounds upon which this court might grant relief under Rule 60(b).

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In particular, it fails to address why his application for habeas relief is not subject to the limitations

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imposed on successive petitions under 28 U.S.C. § 2244(b).

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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:

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_________________________________
UNITED STATES DISTRICT JUDGE

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