Franklin v. Howell et al

Filing 11

ORDER denying 2 Motion for Appointment of Counsel ; ORDER denying 4 Motion for Appointment of Counsel ; ORDER granting 9 Motion/Application for Leave to Proceed in forma pauperis; Franklin has until July 23, 2018, to show cause whythis action should not be dismissed. Signed by Judge Jennifer A. Dorsey on 6/22/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Jeffrey Lynn Franklin,

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Case No.: 2:18-cv-00444-JAD-NJK

Petitioner

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v.

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Jerry Howell, et al.,

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Order to Show Cause
[ECF Nos. 2, 4, 9]

Respondents
Pro se plaintiff Jeffrey Lynn Franklin petitions for a writ of habeas corpus 1 and applies to

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10 proceed in forma pauperis. 2 This is Franklin’s second pauper application (because I denied the
11 first as incomplete). Having reviewed Franklin’s financial documents, I find that he is unable to
12 pay the filing fee, and I grant him pauper status.
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I have also reviewed his petition under Rule 4 of the Rules Governing Section 2254

14 Cases in the United States District Courts, and it appears that this is a successive petition.
15 Franklin challenged his conviction once before in Franklin v. Nevada, Case No. 3:10-cv-0002016 HDM-VPD. The court denied that petition on its merits, 3 and the Ninth Circuit denied Franklin
17 a certificate of appealability. 4 This petition, which challenges the same conviction, is therefore a
18 second or successive petition under 28 U.S.C. § 2244(b).
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Franklin must obtain authorization from the Ninth Circuit before this court can consider

20 his petition. 5 Nothing in the documents that Franklin has filed indicates that he has received that
21 authorization. Franklin will need to show cause why I should not dismiss this action as an
22 unauthorized, successive petition.
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ECF No. 1-1.

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ECF No. 9.

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See case no. 3:10-cv-00020-HDM-VPD at ECF No. 25.

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Id. at ECF No. 30.

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28 U.S.C. § 2244(b)(3).
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Accordingly, IT IS HEREBY ORDERED that Franklin’s application to proceed in forma

2 pauperis [ECF No. 9] is GRANTED. Franklin need not pay the $5.00 filing fee.
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The Clerk of Court is directed to DETACH and FILE the petition for a writ of habeas

4 corpus [ECF No. 1-1].
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IT IS FURTHER ORDERED that Franklin has until July 23, 2018, to show cause why

6 this action should not be dismissed as an unauthorized second or successive petition. If
7 Franklin does not comply with this court-ordered deadline, this action will be DISMISSED
8 without further prior notice.
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IT IS FURTHER ORDERED that Franklin’s motions for appointment of counsel [ECF

10 Nos. 2, 4] are DENIED without prejudice to his ability to refile them if he can show cause why
11 this petition shouldn’t be dismissed.
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Dated: June 22, 2018
_______________________________
U.S. District Judge Jennifer A. Dorsey

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