Torres v. Baker et al

Filing 8

ORDER.Clerk shall file petition 1 -1. Petition is dismissed without prejudice. Clerk shall enter judgment accordingly. Certificate of appealability is denied. IFP Application 7 and motion for appointment of counsel 4 are denied as moot. Signed by Judge Miranda M. Du on 5/18/15. (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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JOSEPH TORRES,

Case No. 3:15-cv-00198-MMD-WGC
Petitioner,

ORDER

v.

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RENEE BAKER, et al.,
Respondents.

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Petitioner has submitted a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254 and has paid the filing fee. (Dkt. nos. 1-1 and 5.) The Court notes that

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petitioner has a previous case under 28 U.S.C. § 2254 with respect to the conviction

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challenged in this newly-submitted petition: Torres v. Benedetti, et al., 3:07-cv-00563-

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ECR-RAM.1 In that proceeding, the court dismissed the petition with prejudice based on

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a finding it was untimely-filed. (Dkt. nos. 19 and 20, 3:07-cv-00563-ECR-RAM.)

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Under 28 U.S.C. § 2244(b), where the petitioner has previously filed an

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application for habeas relief under section 2254 which has been denied on the merits,

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the court cannot grant relief with respect to a claim that was presented in a prior

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Both the current petition and the petition in 3:07-cv-00563-ECR-RAM challenge
petitioner’s Nevada conviction on April 1, 2004, for second degree murder with use of a
deadly weapon.

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application ((b)(1)), or a claim that was not presented in a prior application ((b)(2))

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unless:

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(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or

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(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and

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(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.

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In addition, 28 U.S.C. § 2244(b)(3) requires a petitioner to obtain leave from the

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appropriate court of appeals before filing a second or successive petition in the district

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court.

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The dismissal of a federal petition on the ground of untimeliness is a

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determination “on the merits” for purposes of § 2244(b). McNabb v. Yates, 576 F.3d

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1028, 1030 (9th Cir. 2009). With the exception of Ground Three, the claims in the current

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petition are claims that either were or could have been raised in earlier petition.

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Because Ground Three seeks relief based on an allegation that the state court

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improperly dismissed his second post-conviction proceeding on state procedural

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grounds (dkt. no. 1-1 at 7), it is not cognizable in this federal proceeding. See Ortiz v.

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Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (“[F]ederal habeas relief is not available to

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redress alleged procedural errors in state post-conviction proceedings.”).

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Petitioner has not made a sufficient showing that the exceptions outlined in 28

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U.S.C. § 2244(b)(2) apply. Further, he has failed to secure an order from the court of

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appeals authorizing this action as required by 28 U.S.C. § 2244(b)(3). Therefore, this

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Court is without jurisdiction to consider the habeas petition submitted herein.

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Certificate of Appealability

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If Petitioner seeks to appeal this decision, he must first obtain a certificate of

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appealability. See 28 U.S.C. § 2253(c) (providing that an appeal may not be taken to

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the court of appeals from a final order in a § 2255 proceeding unless a circuit justice or
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judge issues a certificate of appealability); Sveum v. Smith, 403 F.3d 447, 448 (7th Cir.

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2005) (per curiam) (holding that a certificate of appealability is required when the district

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court dismisses a motion on the ground that it is an unauthorized, successive collateral

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attack). A certificate of appealability may issue only if the petitioner “has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In

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addition, when a § 2254 petition is denied on procedural grounds, a certificate of

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appealability should issue only when the petitioner shows that reasonable jurists “would

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find it debatable whether the district court was correct in its procedural ruling.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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Petitioner has not made a substantial showing of the denial of a constitutional

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right or that a reasonable jurist would find it debatable whether the district court was

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correct in its procedural ruling. Therefore, the Court denies a certificate of appealability.

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It is therefore ordered that the Clerk shall file the petition for writ of habeas
corpus (currently docketed as dkt. no. 1-1).
It is further order that the petition is dismissed without prejudice. The Clerk shall
enter judgment accordingly. A certificate of appealabilty is denied.
It is further order that petitioner’s motions to proceed in forma pauperis and for
appointment of counsel (dkt. nos. 4 and 7) are denied as moot.
DATED THIS 18th day of May 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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