Holmes v. Baca et al

Filing 8

ORDER that this action is DISMISSED as a second or successive petition; Clerk directed to enter judgment and close this action; a certificate of appealability will not issue. Signed by Judge Howard D. McKibben on 4/10/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT

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COURT DISTRICT OF NEVADA

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KEVIN RAYHOLMES,

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Petitioner,

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v.

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Case No. 3:16-cv-00306-HDM-VPC
ORDER

ISIDRO BACA, et al.,
Respondents.

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The court instructed petitioner to show cause why this action should not be dismissed as a

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second or successive petition for which he has not obtained authorization to file. ECF No. 5.
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Petitioner has filed a showing of cause. ECF No. 6. The court is not persuaded, and the court
dismisses this action.
Petitioner’s sole argument regarding the successive-petition bar is that none of the claims

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he is presenting now were presented in Holmes v. Helling, Case No. 3:04-cv-00098-PMP-VPC,

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which the court decided on its merits, and thus this is not a second or successive petition.

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Petitioner is wrong. The ruling on the merits in Holmes v. Helling means that this is a second or

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successive petition. New grounds are subject to requirements before this court can consider

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them. 28 U.S.C. § 2244(b)(2). Furthermore, petitioner must first obtain authorization from the

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court of appeals before he can file a successive petition in this court. 28 U.S.C. § 2244(b)(3).

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Petitioner has failed to obtain that authorization.
Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and

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the court will not issue a certificate of appealability.
IT THEREFORE IS ORDERED that this action is DISMISSED as a second or

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successive petition. The clerk of the court shall enter judgment accordingly and close this

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action.

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IT FURTHER IS ORDERED that a certificate of appealability will not issue.

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DATED: April 10, 2018.

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______________________________
Howard D. McKibben
Senior United States District Judge

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