Hernandez v. Gentry et al

Filing 6

ORDER. IT IS ORDERED that the Clerk shall DETACH and FILE 1 -1 the petition. IT IS FURTHER ORDERED that 1 petitioner's application to proceed in forma pauperis is DENIED as moot. IT IS FURTHER ORDERED that 2 petitioner 9;s ex parte motion for appointment of counsel and 5 motion requesting to consolidate are both DENIED as moot. IT IS FURTHER ORDERED that the petition is DISMISSED with prejudice as a successive petition. IT IS FURTHER ORDERED that a ce rtificate of appealability is DENIED. 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 Clerk shall electronically serve the petition, along with a copy of this order, on respondents. IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case. Signed by Judge James C. Mahan on 11/9/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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ESTEBAN HERNANDEZ,

Case No. 2:17-cv-01570-JCM-GWF

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Petitioner,
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JO GENTRY, et al.,

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ORDER

v.

Respondents.
Petitioner Esteban Hernandez has submitted a petition for a writ of habeas
corpus (ECF No. 1-1). He has paid the filing fee, and therefore his application to
proceed in forma pauperis shall be denied as moot.
Petitioner indicates on the face of his petition that he challenged the same
judgment of conviction in a previous habeas petition: 2:03-cv-01008-KJD-RJJ. 28
U.S.C. § 2244(3)(A) provides: “[b]efore a second or successive application permitted by
this section is filed in the district court, the applicant shall move in the appropriate court
of appeals for an order authorizing the district court to consider the application.” Where
a petition has been dismissed with prejudice as untimely or because of procedural
default, the dismissal constitutes a disposition on the merits and renders a subsequent
petition second or successive for purposes of 28 U.S.C. § 2244. McNabb v. Yates, 576
F.3d 1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th
Cir. 2005).

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On April 27, 2004, this court dismissed Hernandez’s first petition with prejudice
as procedurally barred, and judgment was entered (2:03-cv-01008-KJD-RJJ, ECF Nos.
9, 10). The Ninth Circuit Court of Appeals affirmed this court’s order on March 23, 2005
(2:03-cv-01008-KJD-RJJ, ECF No. 16). Moreover, on June 25, 2014, this court
dismissed Hernandez’s second federal habeas petition as second and successive
(2:12-cv-02003-JCM-PAL, ECF No. 27). This petition, therefore, is a second or
successive habeas corpus petition. Henderson v. Lampert, 396 F.3d 1049, 1053 (9th
Cir. 2005). Petitioner was required to obtain authorization from the Ninth Circuit Court
of appeals before he could proceed with a second or successive petition. 28 U.S.C. §
2244(b)(3). Petitioner indicates on the face of this petition that he has not received
authorization from the court of appeals (ECF No. 1-1, p. 2). Accordingly, this petition
shall be dismissed with prejudice as second and successive.
Reasonable jurists would not find this conclusion to be debatable or wrong, and
the court will not issue a certificate of appealability.
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
pauperis (ECF No. 1) is DENIED as moot.
IT IS FURTHER ORDERED that petitioner’s ex parte motion for appointment of
counsel (ECF No. 2) and motion requesting to consolidate (ECF No. 5) are both
DENIED as moot.
IT IS FURTHER ORDERED that the petition is DISMISSED with prejudice as a
successive petition.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.

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IT IS FURTHER ORDERED that the Clerk shall electronically serve the petition,
along with a copy of this order, on respondents. No response by respondents is
necessary.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly
and close this case.

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DATED: 9 November 2017.

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JAMES C. MAHAN
UNITED STATES DISTRICT JUDGE

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