Williams v. Baca et al

Filing 28

ORDER DISMISSING CASE. Motion to dismiss 8 is GRANTED. Action DISMISSED as successive petition. Petitioner DENIED certificate of appealability. Motion for leave to file 22 and motion for stay 24 are DENIED. Motion to strike [26 ] is GRANTED in part. Clerk shall strike statement of additional claims 23 . Motion for extension of time is GRANTED nunc pro tunc. Clerk shall enter judgment accordingly. Signed by Judge Miranda M. Du on 7/15/13. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
10

CHRISTOPHER G. WILLIAMS,

Case No. 3:12-cv-00503-MMD-WGC
Petitioner,

ORDER

v.

11
12
13

I. BACA, et al.,
Respondents.

14
15

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which

16

counsel has been appointed to represent petitioner (dkt. nos. 3, 6). Before the Court is

17

respondents’ motion to dismiss the petition as successive (dkt. no. 8).

18

opposed (dkt. no. 20), and respondents replied (dkt. no. 21).

Petitioner

19

The petition in the instant action challenges petitioner’s state conviction in case

20

number 92C108502. Petitioner previously challenged this same conviction in this court,

21

filed under case number 2:03-cv-00298-RCJ-RJJ. The petition in case number 2:03-cv-

22

00298-RCJ-RJJ was reviewed on the merits and denied by order filed March 19, 2008

23

(dkt. no. 71), and judgment was entered (dkt. no. 72). Petitioner appealed (dkt. no. 73).

24

By order filed December 17, 2009, the United States Court of Appeals for the Ninth

25

Circuit affirmed the denial of the habeas petition (dkt. no. 87).

26

“Before a second or successive application permitted by this section is filed in the

27

district court, the applicant shall move in the appropriate court of appeals for an order

28

authorizing the district court to consider the application.”

28 U.S.C. § 2244(3)(A);

1

(Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) “the district court may not, in

2

the absence of proper authorization from the court of appeals, consider a second or

3

successive habeas application” (internal citations and quotations omitted)). This

4

requirement that prisoners obtain authorization from the circuit court before filing a

5

second or successive petition in the district court is jurisdictional. Burton v. Stewart, 127

6

S. Ct. 793, 796 (U.S. 2007).

7

In the prior habeas case in which petitioner challenged his conviction (case

8

number 2:03-cv-00298-RCJ-RJJ), the court reviewed the merits of the petition and

9

denied the petition. Because the prior habeas corpus petition was decided on the

10

merits, the instant habeas petition is a successive petition. McNabb v. Yates, 576 F.3d

11

1028, 1029 (9th Cir. 2009). Thus, petitioner is required to seek and obtain leave of the

12

Ninth Circuit Court of Appeal to pursue this successive petition. See 28 U.S.C. §

13

2244(b)(3) et seq.

14

Respondents moved to dismiss the successive petition because petitioner has

15

failed to seek leave of the Ninth Circuit to pursue such a petition (dkt. no. 8). In his

16

opposition to the motion to dismiss, petitioner, through counsel, acknowledges that he

17

should have sought leave to file a successive petition (dkt. no. 20 at 8). Petitioner then

18

requests this Court grant leave for him to file the successive petition and sets forth his

19

arguments as to why he should be granted leave (id. at 8-12). This Court is without

20

jurisdiction to grant petitioner leave to file a successive petition. The arguments set

21

forth in petitioner’s opposition appear to be arguments that he would present to the

22

Ninth Circuit in support of his request for authorization to file a second or successive

23

petition pursuant to 28 U.S.C. § 2244(b)(3)(A). Petitioner has acknowledged that he

24

has failed to obtain leave to file a successive petition from the Ninth Circuit Court of

25

Appeals. Therefore, the instant petition will be dismissed as successive.

26

In order to proceed with any appeal, petitioner must receive a certificate of

27

appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9 th Cir. R. 22-1; Allen v.

28

Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236
2

1

F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a substantial

2

showing of the denial of a constitutional right” to warrant a certificate of appealability.

3

Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The

4

petitioner must demonstrate that reasonable jurists would find the district court’s

5

assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529

6

U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of

7

demonstrating that the issues are debatable among jurists of reason; that a court could

8

resolve the issues differently; or that the questions are adequate to deserve

9

encouragement to proceed further. Id.

10

Pursuant to the December 1, 2009, amendment to Rule 11 of the Rules

11

Governing Section 2254 and 2255 Cases, district courts are required to rule on the

12

certificate of appealability in the order disposing of a proceeding adversely to the

13

petitioner or movant, rather than waiting for a notice of appeal and request for certificate

14

of appealability to be filed. Rule 11(a). This Court has considered the issues raised by

15

petitioner, with respect to whether they satisfy the standard for issuance of a certificate

16

of appealability, and determines that none meet that standard. The Court will therefore

17

deny petitioner a certificate of appealability.

18

Finally, petitioner has attempted to file three pro se documents subsequent to his

19

counsel’s filing of the opposition to the motion to dismiss: a motion for leave to file

20

proper person pleadings (dkt. no. 22); a statement of additional claims (dkt. no. 23); and

21

a motion for stay and abeyance (dkt. no. 24). In his motion for leave to file proper

22

person pleadings, petitioner argues that even though he raises new claims in the instant

23

petition, that it is his position that this petition is not successive, contrary to his counsel’s

24

acknowledgment that it is successive. First, Local Rule IA 10-6(A) prohibits a party who

25

has appeared through counsel from acting in the case.

26

undertake to represent himself by filing these motions and statement.

27

discussed in this order, the instant petition is indeed a successive petition, and thus his

28

arguments lack merit. Accordingly, petitioner’s motion for leave to file proper person
3

Petitioner thus cannot
Second, as

1

pleadings (dkt. no. 22) and motion for stay and abeyance (dkt. no. 24) are both denied.

2

His statement of additional claims is stricken.

3
4
5
6
7
8

IT IS THEREFORE ORDERED that respondents’ motion to dismiss (dkt. no. 8) is
GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED as a successive
petition.
IT IS FURTHER ORDERED that petitioner is DENIED a certificate of
appealability.

9

IT IS FURTHER ORDERED that petitioner’s motion for leave to file proper

10

person pleadings (dkt. no. 22) and motion for stay and abeyance (dkt. no. 24) are both

11

DENIED.

12
13
14
15
16
17
18
19
20

IT IS FURTHER ORDERED that respondents’ motion to strike pro se filings in
represented case (dkt. no. 26) is GRANTED in part as set forth in this order.
IT IS FURTHER ORDERED that the Clerk shall strike petitioner’s statement of
additional claims (dkt. no. 23).
IT IS FURTHER ORDERED that petitioner’s motion for extension of time (dkt. no.
16) is GRANTED nunc pro tunc.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.
DATED THIS 15th day of July 2013.

21
22
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28
4