Cunningham v. Gentry et al

Filing 3

ORDER that the clerk of the court file the petition for a writ of habeas corpus. This action is Dismissed with prejudice. The clerk of the court shall enter judgment accordingly and close this action. IT IS FURTHER ORDERED that a certificate of appealability is Denied. Signed by Judge James C. Mahan on 5/5/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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TONY L. CUNNINGHAM,

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Petitioner,

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vs.

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JO GENTRY, et al.,

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Case No. 2:17-cv-01094-JCM-VCF

Respondents.

ORDER

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Petitioner has submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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Petitioner did not pay the filing fee, nor did he file an application to proceed in forma pauperis. The

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court will not require petitioner to correct that problem. Instead, the court will dismiss the action

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because it already has ruled upon the merits of petitioner’s claim.

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Petitioner challenges three judgments of conviction of the Second Judicial District Court of

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the State of Nevada. He challenged the same judgments of conviction in Cunningham v. Williams,

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2:16-cv-00388-APG-CWH (Cunningham I). In Cunningham I, petitioner’s only ground for relief

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was counsel provided ineffective assistance because counsel failed to challenge the validity of the

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Nevada Revised Statutes under the doctrine of separation of powers. The court ruled that the

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ground was without merit, and the court denied the petition. Petitioner did not appeal, and the

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court’s judgment has become final.

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The body of the current petition in this action contains only a note that this is a protective

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petition filed to comply with the one-year time limit of 28 U.S.C. § 2244(d). Attached to the

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petition is an order of the state district court that denied his post-conviction habeas corpus petition.

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The state district court noted that petitioner presented only one claim, which is exactly the same as

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the claim that this court rejected in Cunningham I. The state district court ruled that the claim was

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without merit. The court assumes that petitioner is trying to present that claim, and no other claim,

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in the current petition. However, the court must dismiss the petition because petitioner already has

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presented the same claim in Cunningham I, which the court denied because it was without merit.

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See 28 U.S.C. § 2244(b)(1).1

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Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and the
court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the clerk of the court file the petition for a writ of
habeas corpus.
IT IS FURTHER ORDERED that this action is DISMISSED with prejudice. The clerk of
the court shall enter judgment accordingly and close this action.

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

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DATED: May 5, 2017.

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_________________________________
JAMES C. MAHAN
United States District Judge

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Even if petitioner wanted to present other claims in the current action, the court still would
dismiss this action because it denied Cunningham I on the merits, and petitioner has not obtained
authorization from the court of appeals to file a second or successive petition. See 28 U.S.C.
§ 2244(b)(2), (3).
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