Palovich v. Gentry

Filing 12

ORDER. IT IS ORDERED that 7 petitioner's motion to stay is DENIED. IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice. IT IS FURTHER ORDERED that a certificate of appealability is denied. IT IS FURTHER ORDERED that [5 ] respondents' motion for compliance is DENIED as moot. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. Signed by Judge Andrew P. Gordon on 2/27/2019. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 JOSEPH PALOVICH,
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Case No.: 2:18-cv-00240-APG-PAL

Petitioner
ORDER

5 v.
6 JO GENTRY, et al.,
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Respondents

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Petitioner Joseph Palovich moves to stay this case while he seeks Ninth Circuit

10 authorization to file a successive petition. ECF No. 7. The respondents oppose this request. ECF
11 No. 8. The court lacks jurisdiction over this matter, and therefore the petition is dismissed
12 without prejudice.
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“Before a second or successive application permitted by this section is filed in the district

14 court, the applicant shall move in the appropriate court of appeals for an order authorizing the
15 district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Palovich states that he is
16 seeking Ninth Circuit authorization and asks me to stay this case pending such authorization.
17 But this court lacks jurisdiction over a second or successive petition that has not first been
18 authorized by the court of appeals under 28 U.S.C. § 2244(b). Burton v. Stewart, 549 U.S. 147
19 (2007). I have no authority to stay something over which I have no jurisdiction. Thus, I must
20 dismiss the petition without prejudice.
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IT IS THEREFORE ORDERED that petitioner’s motion to stay (ECF No. 7) is

22 DENIED.
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IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice as set

2 forth in this order.
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IT IS FURTHER ORDERED that a certificate of appealability is denied.

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IT IS FURTHER ORDERED that respondents’ motion for compliance (ECF No. 5) is

5 DENIED as moot.
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IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close

7 this case.
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Dated: February 27, 2019.

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_________________________________
Andrew P. Gordon
United States District Judge

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