Rowell v. Palmer et al
ORDER that petitioner's motion for leave to amend and to vacate judgment ECF No. 58 , motion for evidentiary hearing ECF No. 59 , and motion or judicial notice of fraud on the court ECF No. 63 are all DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Robert C. Jones on 06/14/2017. (Copies have been distributed pursuant to the NEF - KW)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 3:10-cv-00044-RCJ-VPC
NEVADA, STATE OF et al.,
On March 21, 2011, this court denied petitioner Lamar Rowell’s pro se habeas
corpus petition on the merits, and judgment was entered (ECF Nos. 33, 34). Rowell
appealed, and the Ninth Circuit denied a certificate of appealability (ECF Nos. 35, 38).
On June 2, 2011, Rowell filed a motion to set aside judgment for fraud on the
court, this court denied the motion, and the Ninth Circuit denied a certificate of
appealability (ECF Nos. 39, 43, 49).
On December 11, 2013, Rowell filed a motion to set aside judgment, this court
denied the motion, and the Ninth Circuit denied a certificate of appealability (ECF Nos.
50, 52, 56).
Now before the court are Rowell’s motion for leave to amend petition and to
vacate the judgment, motion for evidentiary hearing, and motion for judicial notice of
fraud on the court, filed almost six years after judgment was entered and this case was
closed (ECF Nos. 58, 59, 63). He now claims that he was improperly adjudicated a
habitual criminal because he is actually innocent of having three prior felony
convictions. This is a new claim that the same judgment of conviction violated his
federal constitutional rights. Thus, the purported motion for leave to amend and to
vacate the judgment is in reality a successive petition. 28 U.S.C. § 2244(3)(A) provides:
“[b]efore a second or successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” Where a petition has been
dismissed with prejudice as untimely or because of procedural default, the dismissal
constitutes a disposition on the merits and renders a subsequent petition second or
successive for purposes of 28 U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 10291030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).
Rowell’s frivolous motions are denied as a successive petition. Reasonable
jurists would not find the court’s conclusions to be debatable or wrong, and the court will
not issue a certificate of appealability.
IT IS THEREFORE ORDERED that petitioner’s motion for leave to amend and to
vacate judgment (ECF No. 58), motion for evidentiary hearing (ECF No. 59), and motion
or judicial notice of fraud on the court (ECF No. 63) are all DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
June 14, 2017.
DATED: 12 June 2017
ROBERT C. JONES
UNITED STATES DISTRICT JUDGE
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