McNeal v. Gentry et al

Filing 4

ORDER that the Clerk shall detach and file the 1 -1 Petition. Petitioner's 1 Motion/Application for Leave to Proceed in forma pauperis is Denied as moot. Petitioner's 2 Motion to Appoint Counsel is Denied as moot. The Petition is DISMISSED with prejudice as a successive petition. IT IS FURTHER ORDERED that a certificate of appealability is Denied. The Clerk shall add Adam Paul Laxalt, Nevada Attorney General as counsel for respondents. The Clerk shall enter judgment accordingly and close this case. Signed by Judge Richard F. Boulware, II on 11/8/17. (Copies have been distributed pursuant to the NEF - electronically served Attorney General this Order and Petition - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARCUS SHARIF MCNEAL,

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Case No. 2:17-cv-02589-RFB-CWH
Petitioner,

ORDER

v.
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JO GENTRY, et al.,

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Respondents.

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Petitioner Marcus Sharif McNeal has submitted a petition for a writ of habeas

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corpus (ECF No. 1-1) as well as an application to proceed in forma pauperis. Petitioner

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indicates on the face of his petition that he has already filed a habeas petition challenging

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the same judgment of conviction—C-288873-1—in Case No. 2:16-cv-01618-JAD-GWF.

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

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

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

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

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

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

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

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1053 (9th Cir. 2005).
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McNeal’s earlier-filed petition is in fact currently pending before the court in Case

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No. 2:16-cv-01618-JAD-GWF. The instant petition, therefore, is duplicative and/or a

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second or successive habeas corpus petition. Henderson v. Lampert, 396 F.3d 1049,

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1053 (9th Cir. 2005). Accordingly, this petition shall be dismissed.

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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 motion for appointment of counsel
(ECF No. 2) is DENIED as moot.
IT IS FURTHER ORDERED that the petition is DISMISSED with prejudice as a
successive petition.

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

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

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Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that the Clerk shall electronically serve the petition,

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along with a copy of this order, on respondents.

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necessary.

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No response by respondents is

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

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DATED: 8 November 2017.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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