Bell v. Baca

Filing 8

ORDER. This action is dismissed without prejudice as a successive petition. Petitioner is denied a certificate of appealability. Clerk shall enter judgment accordingly. Signed by Judge Larry R. Hicks on 4/21/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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WILLIAM MITCHELL BELL,

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Petitioner,
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vs.
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ISIDRO BACA, et al.,
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Respondents.
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____________________________________/

3:14-cv-00028-LRH-WGC
ORDER

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,

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by a Nevada state prisoner.

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The petition in the instant action challenges petitioner’s state conviction for second degree

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murder in the Eighth Judicial District Court for the State of Nevada, Case No. C221724. Petitioner

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previously challenged the same conviction in this Court, filed under case number 3:11-cv-00741-

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LRH-WGC. The petition in case number 3:11-cv-00741-LRH-WGC, which raised the same issues

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asserted in the instant petition, was dismissed as untimely by order filed June 8, 2012. (ECF No. 16

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in 3:11-cv-00741-LRH-WGC). Judgment was entered that same date. (ECF No. 17 in 3:11-cv-

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00741-LRH-WGC). Petitioner appealed. By order filed November 8, 2012, the United States Court

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of Appeals for the Ninth Circuit denied petitioner’s application for a certificate of appealability.

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(ECF No. 25 in 3:11-cv-00741-LRH-WGC).

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

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

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court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Pursuant to 28 U.S.C. § 2244(b)(1),

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“[a] claim presented in a second or successive habeas corpus application under section 2254 that was

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presented in a prior petition shall be dismissed.” In the prior habeas case in which petitioner

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challenged his conviction for second degree murder, the Court dismissed the petition with prejudice

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as untimely. (ECF No. 16 in 3:11-cv-00741-LRH-WGC). Where a petition is dismissed with

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prejudice as untimely, the dismissal constitutes a disposition on the merits and renders a subsequent

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petition successive for purposes of 28 U.S.C. § 2244(b). McNabb v. Yates, 576 F.3d 1028, 1029-30

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(9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005). The prior habeas corpus

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petition was dismissed with prejudice as untimely, and the instant habeas petition asserts the same

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claims as the prior petition. Moreover, in 3:11-cv-00741-LRH-WGC, this Court considered and

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rejected the same claims of actual innocence and mental incapacity that petitioner asserts in the

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present petition. The instant petition is a successive petition, which requires petitioner to seek and

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obtain leave of the Ninth Circuit Court of Appeal to pursue. See 28 U.S.C. § 2244(b)(3) et seq.

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Petitioner has not presented this Court with proof that he has obtained leave to file a successive

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petition from the Ninth Circuit Court of Appeals. Therefore, the instant petition will be dismissed as

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successive.

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

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28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-

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951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). District

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courts are required to rule on the certificate of appealability in the order disposing of a proceeding

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adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for

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certificate of appealability to be filed. Rule 11(a) of the Rules Governing Section 2254 and 2255

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Cases. Generally, a petitioner must make “a substantial showing of the denial of a constitutional

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right” to warrant a certificate of appealability. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
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473, 483-84 (2000). “The petitioner must demonstrate that reasonable jurists would find the district

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court's assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at

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484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the

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issues are debatable among jurists of reason; that a court could resolve the issues differently; or that

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the questions are adequate to deserve encouragement to proceed further. Id. In this case, no

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reasonable jurist would find this Court’s dismissal of the petition debatable or wrong. The Court

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therefore denies petitioner a certificate of appealability.

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IT IS THEREFORE ORDERED that this action is DISMISSED WITHOUT
PREJUDICE as a successive petition.
IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF
APPEALABILITY.

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IT IS FURTHER ORDERED that the Clerk SHALL ENTER JUDGMENT accordingly.

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Dated this 21st day of April, 2014.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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