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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 9 10 11 12 JOSE GAXIOLA, ) ) Petitioner, ) ) vs. ) ) WARDEN, LCC, et. al, ) ) Respondents. ) ____________________________________/ 3:16-cv-00500-RCJ-VPC ORDER 13 14 15 16 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 17 conviction challenged in this newly-submitted petition: Gaxiola v. Palmer, et. al, 18 3:06-cv-00516-RCJ-RAM. In that proceeding, the court denied the petition on merits. ECF No. 33, 19 3:06-cv-00516-RCJ-RAM. 20 Under 28 U.S.C. § 2244(b), where the petitioner has previously filed an application for 21 habeas relief under section 2254 which has been denied on the merits, the court cannot grant relief 22 with respect to a claim that was presented in a prior application ((b)(1)) or a claim that was not 23 presented in a prior application ((b)(2)) unless: 24 25 26 (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 1 (B)(I) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 2 4 (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. 5 In addition, 28 U.S.C. § 2244(b)(3) requires a petitioner to obtain leave from the appropriate court of 6 appeals before filing a second or successive petition in the district court. 3 7 The claims in the current petition are claims that either were or could have been raised in the 8 earlier petition. Petitioner has not made a sufficient showing that the exceptions outlined in 28 9 U.S.C. § 2244(b)(2) apply. More importantly, he has failed to secure an order from the court of 10 appeals authorizing this action as required by 28 U.S.C. § 2244(b)(3). Therefore, this court is 11 without jurisdiction to consider the habeas petition filed herein. Certificate of Appealability 12 13 If petitioner seeks to appeal this decision, he must first obtain a certificate of appealability. 14 See 28 U.S.C. § 2253(c) (providing that an appeal may not be taken to the court of appeals from a 15 final order in a habeas corpus proceeding unless a circuit justice or judge issues a certificate of 16 appealability); Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per curiam) (holding that a 17 certificate of appealability is required when the district court dismisses a motion on the ground that it 18 is an unauthorized, successive collateral attack). A certificate of appealability may issue only if the 19 petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 20 2253(c)(2). In addition, when a § 2254 petition is denied on procedural grounds, a certificate of 21 appealability should issue only when the petitioner shows that reasonable jurists "would find it 22 debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 23 U.S. 473, 484 (2000). 24 25 26 Petitioner has not made the necessary showing. Therefore, the court denies a certificate of appealability. 2 1 2 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. 3 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 4 DATED: ______ day of October, 2016. Dated thisThis 18thday of October, 2016. 5 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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