Foster v. Baca et al

Filing 3

ORDER that this action is DISMISSED AS A SUCCESSIVE PETITION; a certificate of appealability is DENIED; the Clerk SHALL ENTER JUDGMENT accordingly; the Clerk SHALL ELECTRONICALLY SERVE respondents with the petition in th e instant action ECF No. 1 -1 and a copy of this order (AG e-served with order and NEF regenerated on Petition ECF No. 1 -1 on 06/13/2017); Clerk SHALL ADD AG docket sheet as counsel for respondents; no response is required from respondents, other than to respond to any orders directed to respondents by a reviewing court. Signed by Judge Howard D. McKibben on 06/13/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JOHN MICHAEL FOSTER,
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Petitioner,

Case No. 3:17-cv-00345-HDM-WGC

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vs.

ORDER

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ISIDRO BACA, 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.
The Court has conducted a review of the petition in this case, pursuant to Rule 4 of the Rules

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Governing Section 2254 Cases in the United States District Courts. The Court concludes that this

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case must be dismissed as successive for failure to comply with the provisions of 28 U.S.C. §

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2244(b). Section 2244(b) requires that a petitioner seeking to file a second or successive habeas

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petition must first obtain authorization from the federal Court of Appeals to do so. See Burton v.

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Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive authorization from the federal

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Court of Appeals before filing a second or successive petition, “the District Court was without

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jurisdiction to entertain [the petition]”); see also Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir.

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2000) (“the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the

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Court of Appeals before a second or successive habeas application under § 2254 may be

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commenced”).

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The petition in this action challenges petitioner’s criminal convictions in Case No. 11-CR-

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000681B, that took place in the First Judicial District Court for the State of Nevada. In that case,

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petitioner was convicted of the following crimes: (1) failure to stop upon signal of a police officer in

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a manner which endangers other persons or property, (2) a third-offense DUI, (3) failure to stop

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upon signal of a police officer causing bodily harm to another person, and (4) battery with a deadly

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weapon. The Court takes judicial notice of the fact that petitioner previously filed a federal habeas

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corpus petition in this Court, under case number 3:17-cv-00317-MMD-WGC, which challenges the

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same convictions. Petitioner has not obtained authorization from the Ninth Circuit Court of

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Appeals to file the instant successive habeas petition. As such, the Court cannot entertain the

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petition and it 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 as successive debatable or wrong.

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The Court therefore denies petitioner a certificate of appealability.

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IT IS THEREFORE ORDERED that this action 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 of Court SHALL ENTER JUDGMENT

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accordingly.
IT IS FURTHER ORDERED that the Clerk of Court SHALL ELECTRONICALLY

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SERVE respondents with the petition in the instant action (ECF No. 1-1) and a copy of this order.

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The Clerk of Court SHALL ADD Attorney General Adam Paul Laxalt to the CM/ECF docket sheet

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as counsel for respondents. No response is required from respondents, other than to respond to any

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orders directed to respondents by a reviewing court.
Dated this 13th day of June, 2017.

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HOWARD D. McKIBBEN
UNITED STATES DISTRICT JUDGE

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