Plumlee v. Baca et al

Filing 6

ORDERED that the Clerk of Court shall file the petition and accompanying motion for appointment of counsel. FURTHER ORDERED that, within 30 days of entry of this order, petitioner shall SHOW CAUSE in writing why the petition should not be trans ferred and referred to the Court of Appeals as a successive petition. FURTHER ORDERED that all assertions of fact made by petitioner in response to this show-cause order must be detailed, must be specific as to time and place, and must be support ed by competent evidence. FURTHER ORDERED that this order does not signify by omission that either the petition or the claims therein otherwise are free of deficiencies Signed by Judge Miranda M. Du on 4/10/2013. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

LARY JAMES PLUMLEE,

10

Petitioner,

ORDER

v.

11
12

Case No. 3:13-cv-00129-MMD-VPC

I. BACA, et al.,
Respondents.

13
14

This habeas matter comes before the Court for initial review under Rule 4 of the

15
16

Rules Governing Section 2254 Cases. The filing fee has been paid.

17

Following initial review, it appears that the petition is a successive petition.

18

Petitioner therefore will be directed to show cause in writing why the petition should not

19

be transferred and referred to the Court of Appeals as a successive petition.

20

I.

BACKGROUND

21

Petitioner Lary James Plumlee challenges his October 3, 1992, Nevada state

22

conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly

23

weapon and robbery with the use of a deadly weapon. He was convicted of these

24

offenses in connection with his April 11, 1991, armed robbery and murder of Wilbur

25

Richard Beard.

26

Petitioner previously challenged the same judgment of conviction in this Court in

27

Case No. 3:00-cv-00244-ECR-VPC. The Court denied the petition on the merits on

28

August 15, 2003.

The Court of Appeals, sitting en banc, affirmed, in a published

1

opinion. See Plumlee v. Masto, 512 F.3d 1204 (9th Cir.)(en banc), cert. denied, 553

2

U.S. 1085 (2008).
The online docket records of the Ninth Circuit do not reflect that petitioner has

3
4

sought and obtained permission from that court to file a second or successive petition.

5

II.

DISCUSSION

6

Under 28 U.S.C. § 2244(b)(3), before a second or successive petition is filed in

7

the federal district court, the petitioner must move in the court of appeals for an order

8

authorizing the district court to consider the petition. A federal district court does not

9

have jurisdiction to entertain a successive petition absent such permission.

In the

10

present petition, petitioner seeks to challenge the same judgment of conviction that he

11

previously challenged in this Court.

12

successive petition because the prior petition was dismissed on the merits.

13

Henderson v. Lampert, 396 F.3d 1049, 1052-53 (9th Cir. 2005). Accordingly, petitioner

14

must show cause why the present petition should not be transferred and referred to the

15

Court of Appeals because he did not first obtain permission from the Court of Appeals

16

for this Court to consider the petition.

The present petition constitutes a second or
E.g.,

The Court does not find that the interests of justice require the appointment of

17
18

counsel during the pendency of the show-cause inquiry.

19

III.

20
21

CONCLUSION
IT IS THEREFORE ORDERED that the Clerk of Court shall file the petition and

accompanying motion for appointment of counsel.

22

IT IS FURTHER ORDERED that, within thirty (30) days of entry of this order,

23

petitioner shall SHOW CAUSE in writing why the petition should not be transferred and

24

referred to the Court of Appeals as a successive petition. If petitioner does not timely

25

respond to this order, the petition will be transferred to the Court of Appeals as a

26

successive petition.

27

IT IS FURTHER ORDERED that all assertions of fact made by petitioner in

28

response to this show-cause order must be detailed, must be specific as to time and

1

place, and must be supported by competent evidence. The Court will not consider any

2

assertions of fact that are not specific as to time and place, that are not made pursuant

3

to a declaration under penalty of perjury based upon personal knowledge, and/or that

4

are not supported by competent evidence filed by petitioner in the federal record.

5

Petitioner thus must attach copies of all materials upon which he bases his argument

6

that the petition should not be transferred as a successive petition.

7

assertions of fact will be disregarded.

Unsupported

8

IT IS FURTHER ORDERED that this order does not signify by omission that

9

either the petition or the claims therein otherwise are free of deficiencies, as the Court

10

defers consideration of any other deficiencies in the papers presented until after

11

assessing the issue raised herein in the first instance.

12

DATED THIS 10th day of April 2013.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE