Franklin v. Howell et al

Filing 15

ORDER that Petitioner's 13 Motion to Show Cause is DENIED and Petitioner's 14 Motion for Appointment of Counsel is DENIED as moot. This action is DISMISSED as a second or successive petition for a writ of habeas corpus. The Cle rk of Court is directed to add Adam Paul Laxalt, Attorney General for the State of Nevada, as counsel for respondents. The Clerk of Court is also directed to enter Judgment accordingly and close this case. Judge Dorsey declines to issue a certificate of appealability. Signed by Judge Jennifer A. Dorsey on 7/16/2018. (Copies have been distributed pursuant to the NEF - SLD)

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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 Dismissing Case

Respondents

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[ECF Nos. 13, 14]

When I reviewed pro se petitioner Jeffrey Lynn Franklin’s petition for a writ of habeas

10 corpus last month, I noticed that Franklin had already challenged his conviction once before in
11 Franklin v. Nevada, Case No. 3:10-cv-00020-HDM-VPD. 1 That petition was denied on its
12 merits, and the Ninth Circuit denied Franklin a certificate of appealability. 2 I ordered Franklin to
13 show cause why this petition shouldn’t be dismissed as second or successive under 28 U.S.C. §
14 2244(b). 3
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Franklin argues that this petition is not successive because he is challenging not the

16 validity of the judgment—like he did in his first petition—but his sentence computation. 4 But
17 this sentence-computation label is belied by the substance of his petition. Franklin was
18 adjudicated a habitual criminal. 5 He doesn’t argue that his sentence is illegal under § 207.010;
19 he argues that his habitual-criminal adjudication was illegal. 6 That is a challenge to the validity
20 of his custody under a state-court judgment of conviction. It is not a challenge based on the
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ECF No. 11.

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Id. at 1, nn.3–4.

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Id. at 2.

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ECF No. 13.

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ECF No. 12-1 at 2.

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Id. at 4–7.
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1 sentence computation that came after judgment of conviction was entered. 7 This is therefore a
2 successive petition, and Franklin must obtain authorization from the Ninth Circuit before he can
3 file it. Because Franklin must overcome this hurdle first, I need not address his remaining
4 arguments.
Accordingly, IT IS HEREBY ORDERED that Franklin’s motion to show cause (which is

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6 actually his response to my order to show cause) [ECF No. 13] is DENIED.
IT IS FURTHER ORDERED that Franklin’s motion for appointment of counsel [ECF

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8 No. 14] is DENIED as moot.
IT IS FURTHER ORDERED that this action is DISMISSED as a second or successive

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10 petition for a writ of habeas corpus.
The Clerk of Court is directed to ADD Adam Paul Laxalt, Attorney General for the

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12 State of Nevada, as counsel for respondents and to electronically SERVE respondents a copy of
13 this order. No response is necessary.
The Clerk of Court is also directed to ENTER JUDGMENT accordingly and CLOSE

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15 THIS CASE.
Because reasonable jurists would not find my decision to dismiss this unauthorized,

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17 successive petition to be debatable or wrong, I decline to issue a certificate of appealability.
Dated: July 16, 2018

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_______________________________
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U.S. District Judge Jennifer A. Dorsey
District Judge Jennifer
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See generally Hill v. Alaska, 297 F.3d 895 (9th Cir. 2002).
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