Houston v. Baker et al

Filing 9

ORDERED that the Clerk shall detach and file the # 1 -1 Petition. FURTHER ORD the petition is DISMISSED for lack of jurisdiction. FURTHER ORD that P's # 1 IFP Application, # 3 Motion for appointment of counsel, and # 6 Motion for enlargement of time are all DENIED as moot. FURTHER ORD that a certificate of appealability is DENIED. Signed by Judge Robert C. Jones on 1/20/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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HORACE CALVIN HOUSTON,
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Petitioner,

Case No. 3:14-cv-00537-RCJ-VPC

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vs.

ORDER

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RENEE BAKER,
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Respondent.
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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. As the court explained previously, on the face of the petition petitioner
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indicates that he filed a previous federal habeas petition challenging this judgment of conviction, which
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was dismissed as untimely (ECF #1-1 at 2; 3:11-cv-00438-ECR-WGC). However, 28 U.S.C. §
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2244(3)(A) provides: “[b]efore a second or successive application permitted by this section is filed in
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the district court, the applicant shall move in the appropriate court of appeals for an order authorizing
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the district court to consider the application.” The instant petition is a successive petition, which
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requires petitioner to seek and obtain leave of the Ninth Circuit Court of Appeals to pursue. See 28
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U.S.C. § 2244(b)(3) et seq. Petitioner further indicates on the face of the petition that he did not
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obtained leave to file a successive petition from the Court of Appeals.
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On November 19, 2014, this court issued a show-cause order directing petitioner to demonstrate

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that this petition should not be dismissed as a second or successive petition (ECF #5). Petitioner filed

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a motion for enlargement of time (ECF #6) and also filed a notice of application for leave of the Ninth

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Circuit Court of Appeals to file a second or successive petition, which he filed with the Ninth Circuit

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on December 18, 2014 (see ECF #8). Thus, petitioner’s application for leave is currently pending

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before the Ninth Circuit. However, the requirement that prisoners obtain authorization from the circuit

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court prior to filing a second or successive petition in the district court is jurisdictional. Burton v.

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Stewart, 549 U.S. 147, 157 (2007). This court is, therefore, without jurisdiction to entertain the instant

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petition, and the petition is dismissed accordingly.

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IT IS THEREFORE ORDERED that the Clerk shall detach and file the petition (ECF #1-1).

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IT IS FURTHER ORDERED that the petition is DISMISSED for lack of jurisdiction.

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IT IS FURTHER ORDERED that petitioner’s application to proceed in forma pauperis (ECF

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#1), motion for appointment of counsel (ECF #3), and motion for enlargement of time (ECF #6) are all

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DENIED as moot.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as jurists of
reason would not find the court’s dismissal of this petition to be debatable or incorrect.
DATED: This 20th day of January, 2015.
Dated, this ___ day of January, 2015.

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___________________________________
UNITED STATES DISTRICT JUDGE

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