Church v. Filson et al

Filing 4

ORDERED that this action is DISMISSED WITHOUT PREJUDICE as a successive petition. IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that the Clerk SHALL ENTER JUDGMENT accordingly. Signed by Judge Howard D. McKibben on 6/2/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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AVERY CHURCH, JR.,
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Petitioner,

Case No. 3:17-cv-00004-HDM-WGC

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vs.

ORDER

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FILSON, et al.,
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Respondents.
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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
by a Nevada state prisoner.

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The petition in the instant action challenges petitioner’s 2006 state conviction for robbery

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with the use of a deadly weapon and impersonating a police officer in the Eighth Judicial District

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Court for the State of Nevada (Case No. C221905). Petitioner previously challenged the same

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convictions in this Court, in a federal habeas petition filed under case number 3:11-cv-00904-RCJ-

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VPC. The petition in case number 3:11-cv-00904-RCJ-VPC, which raised the same issues asserted

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in the instant petition, was dismissed as untimely by order filed March 7, 2013. (ECF No. 17 in

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3:11-cv-00904-RCJ-VPC). Judgment was entered on March 8, 2013. (ECF No. 18 in 3:11-cv-

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00904-RCJ-VPC). Petitioner appealed. By order filed July 25, 2013, the United States Court of

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Appeals for the Ninth Circuit denied petitioner’s application for a certificate of appealability. (ECF

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No. 25 in 3:11-cv-00904-RCJ-VPC).

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“Before a second or successive application permitted by this section is filed in the district

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court, the applicant shall move in the appropriate court of appeals for an order authorizing the

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district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Pursuant to 28 U.S.C. §

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2244(b)(1), “[a] claim presented in a second or successive habeas corpus application under section

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2254 that was presented in a prior petition shall be dismissed.” In the prior habeas case in which

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petitioner challenged the same convictions challenged in the instant case, the Court dismissed the

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petition with prejudice as untimely. (ECF No. 17 in 3:11-cv-00904-RCJ-VPC). Where a petition

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is dismissed with prejudice as untimely, the dismissal constitutes a disposition on the merits and

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renders a subsequent petition successive for purposes of 28 U.S.C. § 2244(b). McNabb v. Yates,

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576 F.3d 1028, 1029-30 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).

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The prior habeas corpus petition was dismissed with prejudice as untimely, and the instant habeas

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petition asserts the same claims as the prior petition. The instant petition is a successive petition,

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which requires petitioner to seek and obtain leave of the Ninth Circuit Court of Appeal to pursue.

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See 28 U.S.C. § 2244(b)(3) et seq. Petitioner has not presented this Court with proof that he has

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obtained leave to file a successive petition from the Ninth Circuit Court of Appeals. Therefore, the

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instant petition will be dismissed as successive.

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In order to proceed with any appeal, petitioner must receive a certificate of appealability.

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28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-

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951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). District

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courts are required to rule on the certificate of appealability in the order disposing of a proceeding

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adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for

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certificate of appealability to be filed. Rule 11(a) of the Rules Governing Section 2254 and 2255

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Cases. Generally, a petitioner must make “a substantial showing of the denial of a constitutional

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right” to warrant a certificate of appealability. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

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473, 483-84 (2000). “The petitioner must demonstrate that reasonable jurists would find the district

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court's assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at

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484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the

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issues are debatable among jurists of reason; that a court could resolve the issues differently; or that
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the questions are adequate to deserve encouragement to proceed further. Id. In this case, no

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reasonable jurist would find this Court’s dismissal of the petition debatable or wrong. The Court

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therefore denies petitioner a certificate of appealability.

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IT IS THEREFORE ORDERED that this action is DISMISSED WITHOUT
PREJUDICE as a successive petition.
IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF
APPEALABILITY.
IT IS FURTHER ORDERED that the Clerk SHALL ENTER JUDGMENT accordingly.

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Dated this 2nd day of June, 2017.

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HOWARD D. McKIBBEN
UNITED STATES DISTRICT JUDGE

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