Warenback v. Williams et al

Filing 5

ORDER. IT IS ORDERED that the Clerk of Court is directed to DETACH and FILE Warenback's petition 1 -1. IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice. IT IS FURTHER ORDERED that 2 Warenback's motion for leave to file a successive petition is DENIED. I decline to issue a certificate of appealability because reasonable jurists would not find my conclusions to be debatable or wrong. The Clerk of Court is directed to ADD Adam Paul Laxalt, Nevada Attorney General, ascounsel for respondents, and ELECTRONICALLY SERVE on respondents the petition along with a copy of this order. Respondents do not need to respond.The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 11/21/2017. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Douglas Harry Warenback,

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Petitioner

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Order Dismissing Petition

v.

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2:17-cv-02834-JAD-VCF

Brian Williams, et al.,

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[ECF No. 2]

Respondents

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Pro se petitioner Douglas Warenback is currently serving 4–10 years at the High Desert

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State Prison after he was convicted of pandering a child.1 He filed this petition for a writ of

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habeas corpus,2 but he did not pay the filing fee or file an application to proceed in forma

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pauperis. Although he filed a “notice of temporary financial information” in which he estimates

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his inmate account balances and provides some transaction summaries,3 these filings are

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insufficient and this matter has been improperly commenced.4

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Warenback also indicates on the face of his petition that he already has a federal habeas

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petition for this conviction pending in this court in case no. 2:15-cv-01789-APG-VCF. Title 28

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U.S.C. § 2244(b)(3)(A) provides: “Before a second or successive application permitted by this

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section is filed in the district court, the applicant shall move in the appropriate court of appeals

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for an order authorizing the district court to consider the application.”5 Where a petition has been

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dismissed with prejudice as untimely or because of procedural default, the dismissal constitutes a

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1

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NEVADA DEP’T OF CORRECTIONS, https://www.doc.nv.gov/Inmates/Home (last visited Nov. 16,
2017) (inmate search by name Douglas Warenback or by offender ID 1112924).

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ECF No. 1-1.

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ECF No. 3.

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28 U.S.C. § 1915(a)(2) (2012); Local Rule LSR 1-2.

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28 U.S.C. § 2244(b)(3)(A) (2012).

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disposition on the merits and renders a subsequent petition successive for purposes of 28 U.S.C.

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§ 2244.6

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Warenback’s earlier-filed petition is still pending in this court before Judge Gordon.7

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This petition is therefore duplicative and successive. Warenback is apparently aware that he

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must seek leave from the Ninth Circuit to file a successive petition because he informs this court

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that he has asked the Ninth Circuit for leave but has not yet received an answer.8 Without leave

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from the Ninth Circuit, Warenback may not file successive habeas petitions.

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Accordingly, the Clerk of Court is directed to DETACH and FILE Warenback’s
petition [ECF No. 1-1].

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IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice.

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IT IS FURTHER ORDERED that Warenback’s motion for leave to file a successive

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petition [ECF No. 2] is DENIED.

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I decline to issue a certificate of appealability because reasonable jurists would not find
my conclusions to be debatable or wrong.

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The Clerk of Court is directed to ADD Adam Paul Laxalt, Nevada Attorney General, as

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counsel for respondents, and ELECTRONICALLY SERVE on respondents the petition along

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with a copy of this order. Respondents do not need to respond.

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The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE
THIS CASE.

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DATED: November 20, 2017.

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_______________________________
__________________
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__ _____ __________
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U.S. District Judge Jenni A. Dorsey
S. District Judge Jennifer
tric dg
r
nifer
ni

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See 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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See docket report 2:15-cv-01789-APG-VCF.

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ECF No. 2 at 2.
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