Turner v. Baker et al

Filing 8

ORDER dismissing with prejudice the petition as successive; denying a certificate of appealability; directing Clerk to enter judgment and close case. Signed by Judge Howard D. McKibben on 6/1/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ALQUANDRE H. TURNER, 10 Case No. 3:17-cv-00151-HDM-VPC Petitioner, ORDER v. 11 RENEE BAKER, et al., 12 Respondents. 13 14 Petitioner Alquandre H. Turner’s pro se petition for writ of habeas corpus is 15 before the court on his response to this court’s show-cause order as to why the petition 16 is not subject to dismissal as time-barred (ECF No. 7). Turner’s response brought to 17 the court’s attention the fact that the petition must be dismissed as successive. 18 Turner has previously filed two federal habeas petitions challenging the same 19 judgment of conviction, 06C219519. 28 U.S.C. § 2244(3)(A) provides: “[b]efore a 20 second or successive application permitted by this section is filed in the district court, 21 the applicant shall move in the appropriate court of appeals for an order authorizing the 22 district court to consider the application.” W here a petition has been dismissed with 23 prejudice as untimely or because of procedural default, the dismissal constitutes a 24 disposition on the merits and renders a subsequent petition second or successive for 25 purposes of 28 U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 26 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005). 27 28 First, Turner submitted a federal habeas petition in case no. 3:08-cv-00435-BESVPC challenging the same judgment of conviction. On January 6, 2009, the court 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 dismissed the petition without prejudice due to Turner’s failure to respond in any way to this court’s order directing Turner to pay the $5.00 filing fee. Id. at ECF No. 9. Judgment was entered. Id. at ECF No. 10. On February 18, 2014, Turner’s second habeas petition challenging the same judgment of conviction was dismissed with prejudice as untimely, and judgment was entered (3:13-cv-00096-RCJ-WGC, ECF Nos. 10, 11). Turner filed a notice of appeal, and the Ninth Circuit Court of Appeals denied his request for a certificate of appealability. Id. at ECF Nos. 12, 14. The instant petition is, therefore, a successive petition, which requires petitioner to seek and obtain leave of the appeals court to pursue. See 28 U.S.C. § 2244(b)(3) et seq. Accordingly, Turner’s petition is dismissed with prejudice as successive. IT IS THEREFORE ORDERED that the petition is DISMISSED with prejudice as successive. IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as jurists of reason would not find the court’s dismissal of this petition to be debatable or incorrect. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. Dated: June 1st, 2017. 20 21 Howard D. McKibben, Senior U.S. District Judge 22 23 24 25 26 27 28 2

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