Glaxiola v. Warden, LCC et al

Filing 3

ORDER dismissing ECF No. 2 Petition for Writ of Habeas Corpus for lack of jurisdiction; directing Clerk to enter judgment accordingly, denying a certificate of appealability. Signed by Judge Robert C. Jones on 10/18/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOSE GAXIOLA,

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Petitioner,
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vs.
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WARDEN, LCC, et. al,
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Respondents.
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____________________________________/

3:16-cv-00500-RCJ-VPC
ORDER

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Petitioner has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 and paid the
required fee. ECF Nos. 1/2.
The court notes that petitioner has a previous case under 28 U.S.C. § 2254 with respect to the

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conviction challenged in this newly-submitted petition: Gaxiola v. Palmer, et. al,

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3:06-cv-00516-RCJ-RAM. In that proceeding, the court denied the petition on merits. ECF No. 33,

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3:06-cv-00516-RCJ-RAM.

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

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habeas relief under section 2254 which has been denied on the merits, the court cannot grant relief

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with respect to a claim that was presented in a prior application ((b)(1)) or a claim that was not

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presented in a prior application ((b)(2)) 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 appropriate court of

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

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The claims in the current petition are claims that either were or could have been raised in the

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

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U.S.C. § 2244(b)(2) apply. More importantly, 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 court is

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without jurisdiction to consider the habeas petition filed herein.
Certificate of Appealability

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If petitioner seeks to appeal this decision, he must first obtain a certificate of appealability.

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See 28 U.S.C. § 2253(c) (providing that an appeal may not be taken to the court of appeals from a

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final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of

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appealability); Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per curiam) (holding that a

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certificate of appealability is required when the district court dismisses a motion on the ground that it

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is an unauthorized, successive collateral attack). A certificate of appealability may issue only if the

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petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §

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2253(c)(2). In 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 find it

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debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529

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U.S. 473, 484 (2000).

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Petitioner has not made the necessary showing. Therefore, the court denies a certificate of
appealability.
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IT IS THEREFORE ORDERED that the petition for writ of habeas corpus (ECF No. 2) is
dismissed for lack of jurisdiction. The Clerk shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: ______ day of October, 2016.
Dated thisThis 18thday of October, 2016.

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UNITED STATES DISTRICT JUDGE

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