Mariscal v. Nevada Department of Corrections et al

Filing 5

ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis; ORDER denying 2 Motion for Appointment of Counsel ; ORDER denying 3 Motion for Hearing; Petitioner will have thirty (30) days from the date of entry of this order to show cause why this action should not be dismissed. Signed by Chief Judge Gloria M. Navarro on 6/20/2018. (Copies have been distributed pursuant to the NEF - JM)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11

DAVID MARISCAL,

12
13
14
15
16
17

Petitioner,

Case No. 2:18-cv-00347-GMN-VCF
ORDER

v.
NEVADA DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
Petitioner has submitted an application to proceed in forma pauperis (ECF No. 1) and a

18

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court finds that petitioner

19

is unable to pay the filing fee.

20

Petitioner challenges his custody pursuant to the judgment of conviction of the Second

21

Judicial District Court of the State of Nevada, Case No. CR94-0080. Petitioner challenged his

22

custody pursuant to the same judgment of conviction in Mariscal v. Skolnik, Case No. 3:07-cv-

23

00296-LRH-VPC. The court denied that petition on its merits, and the court of appeals denied a

24

certificate of appealability. Consequently, the current petition is a second or successive petition

25

under 28 U.S.C. § 2244(b). Petitioner must first obtain authorization from the court of appeals

26

before this court can consider his petition. 28 U.S.C. § 2244(b)(3). Nothing in the documents

27

that petitioner has filed indicates that he has received such authorization. Petitioner will need to

28

show cause why the court should not dismiss the action.
1

1

Petitioner has filed a motion for appointment of counsel (ECF No. 2) and a request for

2

evidentiary hearing (ECF No. 3). The court denies these motions because it appears that

3

petitioner is not authorized to proceed with this action. If petitioner can show authorization, then

4

he may renew these motions.

5
6
7
8
9
10
11
12
13

IT THEREFORE IS ORDERED that the application to proceed in forma pauperis (ECF
No. 1) is GRANTED. Petitioner need not pay the filing fee of five dollars ($5.00).
IT FURTHER IS ORDERED that petitioner’s motion for appointment of counsel (ECF
No. 2) is DENIED.
IT FURTHER IS ORDERED that petitioner’s request for evidentiary hearing (ECF No. 3)
is DENIED.
IT FURTHER IS ORDERED that the clerk of the court shall file the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
IT FURTHER IS ORDERED that petitioner will have thirty (30) days from the date of

14

entry of this order to show cause why this action should not be dismissed as a second or

15

successive petition. Failure to comply will result in the dismissal of this action.

16

DATED: June 20, 2018

17

______________________________
GLORIA M. NAVARRO
Chief United States District Judge

18
19
20
21
22
23
24
25
26
27
28
2