Johnson v. LeGrand et al

Filing 9

ORDER granting ECF No. 8 motion for voluntary dismissal. 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 Howard D. McKibben on 5/24/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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TIMOTHY HOWARD JOHNSON,

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Petitioner,

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vs.

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ROBERT LeGRAND, et al.,

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Case No. 3:15-cv-00258-HDM-WGC

Respondents.

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 Court has conducted a preliminary review of the petition pursuant to Rule 4 of the Rules
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Governing Section 2254 Cases in the United States District Courts. The Court must dismiss a
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petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not
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entitled to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases; see also
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Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

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The Court takes judicial notice of prior habeas corpus actions filed by petitioner in this Court
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under the following case numbers: 3:88-cv-00483; 3:92-cv-00372; and 3:93-cv-00490. Petitioner’s
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first habeas corpus action, filed as case number 3:88-cv-00483, was reviewed on the merits and
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denied by order filed May 19, 1989. (ECF No. 14 in 3:88-cv-00483). Petitioner filed a second
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habeas petition in case number 3:92-00372, which was reviewed on the merits and denied on May
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19, 1994. (ECF No. 42 in 3:92-00372). Petitioner filed a third habeas petition in case number 3:93-

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490, which was dismissed on May 17, 1994. (ECF No. 8 in case number 3:93-490).

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A successive habeas petition may not be filed in this Court unless the petitioner has obtained

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permission from the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A) (“Before a

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second or successive application permitted by this section is filed in the district court, the applicant

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shall move in the appropriate court of appeals for an order authorizing the district court to consider

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the application.”). In the instant case, by order filed December 30, 2015, this Court granted

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petitioner thirty days in which submit proof to demonstrate that he has obtained authorization from

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the Ninth Circuit Court of Appeals to present the successive petition filed in this action. Petitioner

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has not obtained authorization from the Ninth Circuit Court of Appeals to file the instant successive

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habeas petition. In fact, petitioner has filed a motion to voluntarily dismiss this action. (ECF No.

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8). This action will be dismissed as a successive petition.

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IT IS THEREFORE ORDERED that the Clerk of Court SHALL ADD to the docket

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Adam Paul Laxalt, Attorney General of the State of Nevada, as counsel for respondents. The Clerk

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of Court shall electronically serve respondents with a copy of the habeas corpus petition and a copy

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of this order. Respondents need take no action with respect to this case.

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IT IS FURTHER ORDERED that petitioner’s motion for voluntary dismissal is
GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED WITHOUT PREJUDICE
as a successive petition.

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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 24th day of May, 2016.

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HOWARD D. McKIBBEN
UNITED STATES DISTRICT JUDGE

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