Deavila v. Baca et al

Filing 5

ORDER directing clerk to file ECF No. 1 - 1 Petition; petition is dismissed; certificate of appealability is denied; clerk directed to add AG as counsel for respondents; clerk to e-serve respondents with this order and the ECF No. 1 - 1 Petition (E-service and NEF sent 11/29/2017); no response is necessary; clerk directed to enter judgment and close the case. Signed by Judge Miranda M. Du on 11/29/2017. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RODNEY P. DEAVILA,

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Case No. 3:17-cv-00315-MMD-WGC
Petitioner,

ORDER

v.
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ISIDRO BACA, et al.,
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Respondents.
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Petitioner Rodney P. Deavila has submitted a § 2254 petition for a writ of habeas

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corpus and has now paid the filing fee (see ECF No. 4). The petition be dismissed as

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second and successive.

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28 U.S.C. § 2244(3)(A) provides: “[b]efore a second or successive application

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permitted by this section is filed in the district court, the applicant shall move in the

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appropriate court of appeals for an order authorizing the district court to consider the

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application.” Where a petition has been dismissed with prejudice as untimely or because

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of procedural default, the dismissal constitutes a disposition on the merits and renders a

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subsequent petition second or successive for purposes of 28 U.S.C. § 2244. McNabb v.

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Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049,

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1053 (9th Cir. 2005).

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Petitioner indicates on the face of his petition that he seeks to challenge the state

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judgment of conviction in case no. C189184 (ECF No. 1-1, p. 2). This Court takes judicial

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notice of its docket, and Deavila previously filed case no. 2:06-cv-00464-KJD-PAL, in

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which he challenged the same state judgment of conviction. On March 25, 2008, this

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Court dismissed the first petition as untimely, and the Ninth Circuit Court of Appeals

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denied petitioner a certificate of appealability (2:06-cv-00464-KJD-PAL, ECF Nos. 12, 13,

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20). This petition, therefore, is a second or successive habeas corpus petition. Henderson

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v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005). Petitioner was required to obtain

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authorization from the Ninth Circuit Court of appeals before he could proceed. 28 U.S.C.

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§ 2244(b)(3). Petitioner has not indicated that he has received such authorization from

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the court of appeals. Accordingly, this petition will be dismissed as second and

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successive. Such dismissal is without prejudice to petitioner filing a second and

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successive petition if he obtains leave of the Ninth Circuit.

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Reasonable jurists would not find this conclusion to be debatable or wrong, and
the Court will not issue a certificate of appealability.

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It is therefore ordered that the Clerk detach and file the petition (ECF No. 1-1).

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It is further ordered that the petition is dismissed as a successive petition.

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It is further ordered that a certificate of appealability is denied.

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It is further ordered that the Clerk add Adam Paul Laxalt, Nevada Attorney General,

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as counsel for respondents.
It is further ordered that the Clerk electronically serve the petition, along with a
copy of this order, on respondents. No response by respondents is necessary.
It is further ordered that the Clerk enter judgment accordingly and close this case.

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DATED THIS 29th day of November 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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