Turner v. Baker et al
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)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
ALQUANDRE H. TURNER,
Case No. 3:17-cv-00151-HDM-VPC
RENEE BAKER, et al.,
Petitioner Alquandre H. Turner’s pro se petition for writ of habeas corpus is
before the court on his response to this court’s show-cause order as to why the petition
is not subject to dismissal as time-barred (ECF No. 7). Turner’s response brought to
the court’s attention the fact that the petition must be dismissed as successive.
Turner has previously filed two federal habeas petitions challenging the same
judgment of conviction, 06C219519. 28 U.S.C. § 2244(3)(A) provides: “[b]efore a
second or successive application permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” W here a petition has been dismissed with
prejudice as untimely or because of procedural default, the dismissal constitutes a
disposition on the merits and renders a subsequent petition second or successive for
purposes of 28 U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir.
2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).
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
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
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
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.
Dated: June 1st, 2017.
Howard D. McKibben, Senior U.S. District Judge
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