Martinez v. State of Nevada

Filing 7

ORDER that the Clerk shall DETACH and FILE the petition. FURTHER ORDERED that 5 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. FURTHER ORDERED that the petition is DISMISSED as a successive petition. A certificate of app ealability is DENIED. FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents. The Clerk shall electronically serve the petition, along with a copy of this order, on respondents. No response by respondents is necessary.FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case. Signed by Judge Richard F. Boulware, II on 12/12/2017. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
***
9
10

FREDRICK MARTINEZ,

11

Case No. 2:17-cv-00501-RFB-CWH
Petitioner,

ORDER

v.
12
13

STATE OF NEVADA,

14

Respondent.

15
16
17

Petitioner Fredrick Martinez has submitted a petition for a writ of habeas corpus

18

(ECF No. 1-1). Pursuant to this court’s order, Martinez has now filed an application to

19

proceed in forma pauperis along with the financial certificate and inmate account

20

statements. The application to proceed in forma pauperis (ECF No. 5) shall be granted.

21

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

22

permitted by this section is filed in the district court, the applicant shall move in the

23

appropriate court of appeals for an order authorizing the district court to consider the

24

application.” Where a petition has been dismissed with prejudice as untimely or because

25

of procedural default, the dismissal constitutes a disposition on the merits and renders a

26

subsequent petition second or successive for purposes of 28 U.S.C. § 2244. McNabb v.

27

Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049,

28

1053 (9th Cir. 2005).
1

1

Petitioner indicates on the face of his petition that he seeks to challenge the state

2

judgment of conviction in case no. C230889 (ECF No. 1-1, p. 3). This court takes judicial

3

notice of its docket, and Martinez previously filed case no. 3:14-cv-00097-RCJ-VPC, in

4

which he challenged the same state judgment of conviction. On November 19, 2014, this

5

court dismissed the earlier petition with prejudice as untimely, and judgment was entered

6

(3:14-cv-00097-RCJ-VPC, ECF Nos. 6, 7).

7

successive habeas corpus petition. Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.

8

2005). Petitioner was required to obtain authorization from the Ninth Circuit Court of

9

appeals before he could proceed with a second or successive petition. 28 U.S.C. §

10

2244(b)(3). Petitioner had not indicated that he has received such authorization from the

11

court of appeals. Accordingly, this petition shall be dismissed as second and successive.

12

Reasonable jurists would not find this conclusion to be debatable or wrong, and

13

the court will not issue a certificate of appealability.

14
15

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

16
17

pauperis (ECF No. 5) is GRANTED.

18
19

This petition, therefore, is a second or

IT IS FURTHER ORDERED that the petition is DISMISSED as a successive
petition.

20

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

21

IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada Attorney

22

General, as counsel for respondents.

23

...

24

...

25

...

26

...

27

...

28

...
2

1

IT IS FURTHER ORDERED that the Clerk shall electronically serve the petition,

2

along with a copy of this order, on respondents.

3

necessary.

4
5

No response by respondents is

IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly
and close this case.

6
7

DATED: 12 December 2017.

8
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3