Kevin D. Sutton VS Craig Farewell

Filing 58

ORDER that petitioner's motion for relief from judgment or order, and motion to amend petition (ECF No. 55 ) is DENIED; a certificate of appealability will not issue. Signed by Judge Howard D. McKibben on 9/20/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN D. SUTTON,

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Petitioner,

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Case No. 3:04-cv-00498-HDM-RAM
ORDER

v.

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CRAIG FARWELL, et al.,

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Respondents.

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Before the court are petitioner’s motion for relief from judgment or order, and motion to

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amend petition (ECF No. 55), respondents’ opposition (ECF No. 56), and petitioner’s reply (ECF

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No. 57). The court denies the motion.
On May 8, 2006, the court denied the petition for a writ of habeas corpus (ECF No. 7),

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finding that the two remaining grounds were without merit.1 ECF No. 28. Petitioner appealed,

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and the court of appeals affirmed on August 7, 2008. ECF No. 42. Petitioner sought certiorari

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from the Supreme Court of the United States, which denied his petition on January 12, 2009.

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ECF No. 46.
Petitioner asks the court to reopen this action and to allow him to file an amended petition.

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The amended petition contains one ground, but with multiple claims. First, petitioner claims that

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Grounds 1-11 were dismissed earlier because they were not exhausted. ECF No. 20. In a previous motion for relief
from the judgment, petitioner argued that the respondents committed fraud when they argued that grounds 1-11 were
not exhausted. ECF No. 47. The court denied that motion. ECF No. 54.

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the trial court used the incorrect jury instruction for the definitions of the elements of willfulness,

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deliberation, and premeditation in accepting his plea of guilty to first-degree murder. Second,

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petitioner claims that his guilty plea is invalid because he did not receive notice of the charge

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against him and because the state district court did not determine that petitioner understood the

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nature of the charge. For these reasons, petitioner argues that he is actually innocent.

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Petitioner is not attacking the integrity of the court’s final judgment. His proposed

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amended petition contains completely new claims that ask for relief from the judgment of

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conviction. Petitioner effectively is presenting a second or successive petition for a writ of

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habeas corpus. Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005); Jones v. Ryan, 733 F.3d 825,

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833-35 (9th Cir. 2013). Petitioner needs to obtain authorization from the court of appeals before

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he can proceed with a second or successive petition. 28 U.S.C. § 2244(b)(3). The court denies

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petitioner’s motion.

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Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and the
court will not issue a certificate of appealability.
IT THEREFORE IS ORDERED that petitioner’s motion for relief from judgment or
order, and motion to amend petition (ECF No. 55) is DENIED.

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IT FURTHER IS ORDERED that a certificate of appealability will not issue.

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DATED: September 20, 2018.

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______________________________
HOWARD D. MCKIBBEN
United States District Judge

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