Rowell v. Palmer et al

Filing 75

ORDER that petitioner's motion to deny preclusive effect to state court judgment as void and motion to set aside order denying habeas petition ECF Nos. 72 and 73 are both DENIED; a certificate of appealability is DENIED; that petitioner shall file no further documents in thisclosed case. Signed by Judge Robert C. Jones on 3/22/2019. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LAMAR ROWELL,

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Case No. 3:10-cv-00044-RCJ-VPC
Petitioner,

ORDER

v.
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NEVADA, STATE OF et al.,
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Respondents.
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On March 21, 2011, this court denied petitioner Lamar Rowell’s pro se habeas

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corpus petition on the merits, and judgment was entered (ECF Nos. 33, 34). Rowell

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appealed, and the Ninth Circuit denied a certificate of appealability (ECF Nos. 35, 38).

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On June 2, 2011, Rowell filed a motion to set aside judgment for fraud on the

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court, this court denied the motion, and the Ninth Circuit denied a certificate of

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appealability (ECF Nos. 39, 43, 49).

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On December 11, 2013, Rowell filed a motion to set aside judgment; this court

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denied the motion, and the Ninth Circuit denied a certificate of appealability (ECF Nos.

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50, 52, 56).

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On June 14, 2017, this court denied Rowell’s motion for leave to amend and

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vacate judgment, motion for evidentiary hearing, and motion or judicial notice of fraud

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on the court (ECF No. 66). The court of appeals denied a certificate of appealability

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(ECF No. 69).

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Now before the court is what Rowell has styled a motion to deny preclusive effect
to state court judgment/motion to set aside order denying habeas petition (docketed as
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two motions at ECF Nos. 72, 73). He now claims—as he has in earlier motions filed in
this closed case—that he was improperly adjudicated a habitual criminal. As this court
has explained before, this is a new claim that the same judgment of conviction violated
his federal constitutional rights. Thus, the purported motion(s) 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, 1029-1030 (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 to deny preclusive effect
to state court judgment as void and motion to set aside order denying habeas petition
(ECF Nos. 72 and 73) are both DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner shall file no further documents in this
closed case.

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DATED: 22 March 2019.
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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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