Williams v. Baca et al

Filing 5

ORDERED that this action is DISMISSED as a successive petition. FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY. FURTHER ORDERED that the Clerk SHALL ENTER JUDGMENT accordingly. Signed by Judge Larry R. Hicks on 10/16/2014. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CHRISTOPHER WILLIAMS,

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Petitioner,

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vs.

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Case No. 3:14-cv-00383-LRH-WGC

ISIDRO BACA, et al.,

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ORDER

Respondents.

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

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

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

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RJJ was reviewed on the merits and denied by order filed March 19, 2008. (ECF No. 71).

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Judgment was entered the same date. (ECF No. 72). Petitioner appealed. (ECF No. 73). In an

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opinion filed December 17, 2009, the United States Court of Appeals for the Ninth Circuit affirmed

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the denial of the habeas petition. (ECF No. 87).

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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

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district court to consider the application.” 28 U.S.C. § 2244(3)(A). The instant petition is a

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successive petition, which requires petitioner to seek and obtain leave of the Ninth Circuit Court of

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Appeal to pursue. See 28 U.S.C. § 2244(b)(3) et seq. Because the prior habeas corpus petition was

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decided on the merits, the instant habeas petition is a successive petition. McNabb v. Yates, 576

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F.3d 1028, 1029 (9th Cir. 2009). Petitioner has not presented this Court with proof that he has

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obtained leave to file a successive petition from the Ninth Circuit Court of Appeals. Therefore, the

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instant petition will be dismissed as successive.

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

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

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request for certificate of appealability to be filed. Rule 11(a). In order to proceed with any appeal,

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petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th

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Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v.

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Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a substantial

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showing of the denial of a constitutional right” to warrant a certificate of appealability. Id.; 28

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

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demonstrate that reasonable jurists would find the district court's assessment of the constitutional

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claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold

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inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of

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reason; that a court could resolve the issues differently; or that the questions are adequate to deserve

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encouragement to proceed further. Id. In this case, no reasonable jurist would find this Court’s

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dismissal of the petition debatable or wrong. The Court therefore denies petitioner a certificate of

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appealability.

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IT IS THEREFORE ORDERED that this action is DISMISSED as a successive petition.

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IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF

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

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DATED this 16th day of October, 2014.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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