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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT 9 COURT DISTRICT OF NEVADA 10 KEVIN RAYHOLMES, 11 Petitioner, 12 v. 13 14 Case No. 3:16-cv-00306-HDM-VPC ORDER ISIDRO BACA, et al., Respondents. 15 16 The court instructed petitioner to show cause why this action should not be dismissed as a 17 second or successive petition for which he has not obtained authorization to file. ECF No. 5. 18 19 20 21 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 22 he is presenting now were presented in Holmes v. Helling, Case No. 3:04-cv-00098-PMP-VPC, 23 which the court decided on its merits, and thus this is not a second or successive petition. 24 Petitioner is wrong. The ruling on the merits in Holmes v. Helling means that this is a second or 25 successive petition. New grounds are subject to requirements before this court can consider 26 them. 28 U.S.C. § 2244(b)(2). Furthermore, petitioner must first obtain authorization from the 27 court of appeals before he can file a successive petition in this court. 28 U.S.C. § 2244(b)(3). 28 1 1 Petitioner has failed to obtain that authorization. Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and 2 3 the court will not issue a certificate of appealability. IT THEREFORE IS ORDERED that this action is DISMISSED as a second or 4 5 successive petition. The clerk of the court shall enter judgment accordingly and close this 6 action. 7 IT FURTHER IS ORDERED that a certificate of appealability will not issue. 8 DATED: April 10, 2018. 9 10 11 ______________________________ Howard D. McKibben Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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