-VPC James Edmondson VS Craig Farwell, et al.
Filing
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ORDER. IT IS HEREBY ORDERED that this petitioner's 32 "re-application for petition of writ of habeas corpus" is DISMISSED with prejudice as a successive petition. FURTHER ORDERED, petitioner is DENIED A CERTIFICATE OF APPEALABILITY. Signed by Judge Edward C. Reed, Jr on 1/31/2012. (Copies have been distributed pursuant to the NEF - KO)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JAMES EDMONDSON,
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Petitioner,
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vs.
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CRAIG FARWELL, et al.,
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Respondents.
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____________________________________/
3:04-cv-00452-ECR-VPC
ORDER
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This closed action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
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§ 2254, by a Nevada state prisoner.
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On September 1, 2006, the Court denied the habeas petition in its entirety. (ECF No. 20).
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Judgment was entered on September 5, 2006. (ECF No. 21). Petitioner appealed. (ECF No. 22).
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On December 19, 2006, the United States Court of Appeals for the Ninth Circuit entered an order
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denying petitioner’s request for a certificate of appealability, and denying all motions and requests
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related to the appeal. (ECF No. 30).
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I. Successive Petition
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On January 27, 2012, over 5 years after the denial of the petition and dismissal of the appeal,
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petitioner has filed a “re-application for petition of writ of habeas corpus.” (ECF No. 32). The Court
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construes petitioner’s January 27, 2012 filing as a successive petition. Before a second or successive
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application permitted by this section is filed in the district court, the applicant shall move in the
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appropriate court of appeals for an order authorizing the district court to consider the application.”
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28 U.S.C. § 2244(3)(A). The instant petition is a successive petition, which requires petitioner to
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seek and obtain leave of the Ninth Circuit Court of Appeal to pursue. See 28 U.S.C. § 2244(b)(3) et
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seq. The petitioner has not presented this Court with proof that he has obtained leave to file a
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successive petition from the Court of Appeals. Therefore, the petition will be dismissed. Moreover,
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to the extent that petitioner may obtain leave to file a successive petition, such petition must be
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opened as a new case, not a continuation of the instant case, which has been closed for years.
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II. Certificate of Appealability
In order to proceed with any appeal, petitioner must receive a certificate of appealability. 28
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U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951
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(9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a
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petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a
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certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84
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(2000). “The petitioner must demonstrate that reasonable jurists would find the district court's
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assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In
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order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are
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debatable among jurists of reason; that a court could resolve the issues differently; or that the
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questions are adequate to deserve encouragement to proceed further. Id.
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Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing Section
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2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the
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order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice
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of appeal and request for certificate of appealability to be filed. Rule 11(a). This Court has
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considered the issues raised by petitioner, with respect to whether they satisfy the standard for
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issuance of a certificate of appealability, and determines that none meet that standard. The Court
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therefore denies petitioner a certificate of appealability.
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III. Conclusion
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IT IS THEREFORE ORDERED that this petitioner’s “re-application for petition of writ of
habeas corpus” (ECF No. 32) is DISMISSED with prejudice as a successive petition.
IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF
APPEALABILITY.
Dated this 31st day of January, 2012.
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UNITED STATES DISTRICT JUDGE
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