Vasquez v. Baca et al

Filing 10

ORDERED that this action shall be DISMISSED without prejudice for lack of jurisdiction as a successive petition. Clerk shall make informal electronic service upon Rs by adding AG as counsel for respondents and directing a notice of electronic fi ling of this order to his office, (E-service on 11/22/2017.) Clerk shall direct regenerated NEFs of the prior filings herein to the AG, and that counsel shall file a notice of appearance by 12/13/2017.(Regenerated NEFs 1-9 to AG on 11/22/2019.) No other response is required from respondents other than to respond to any orders of a reviewing court. A certificate of appealability is DENIED. Clerk further shall SEND petitioner a copy of the petition, order of dismissal and judgment (ECF Nos. 1, 11 & 12) from 2:09-cv-00834-LDG-RJJ with this order. (Mailed 11/22/2017.) Clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Judge Howard D. McKibben on 11/22/2017. (Copies have been distributed pursuant to the NEF - DRM) Modified on 11/22/2017 for spelling (DRM).

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROSENDO VASQUEZ,

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Petitioner,
vs.

3:17-cv-00420-HDM-WGC
ORDER

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ISIDRO BACA, et al.,

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Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte

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inquiry as to whether the petition should be dismissed as a successive petition. This order

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follows upon the Court's earlier show-cause order and petitioner's response thereto. ECF

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Nos. 7 & 9.
Background

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Petitioner Rosendo Vasquez seeks to set aside his April 26, 2007, Nevada state

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judgment of conviction, pursuant to a guilty plea, of three counts of attempted lewdness with

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a child under the age of fourteen, in No. C229752 in the state district court. 1

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Petitioner previously sought federal habeas relief in this Court challenging the same

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April 26, 2007, judgment of conviction in No. C229752 in Vasquez v. Lovelock Correctional

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The Court takes judicial notice of its records in the prior action filed in this Court by petitioner as well
as of the online docket records of the Eighth Judicial District Court for the State of Nevada. E.g., Harris v.
County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). The online docket records of the state district
court may be accessed from:
https://www.clarkcountycourts.us/Anonymous/default.aspx

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Center Warden, No. 2:09-cv-00834-LDG-RJJ. The Court dismissed that prior petition on the

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merits on October 8, 2010; and petitioner did not file an appeal.

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Review of the state district court’s online docket sheet reflects that there have been no

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intervening amended or corrected judgments of conviction filed in that court subsequent to

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the April 26, 2007, judgment.

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The claims in the current petition clearly challenge the same April 26, 2007, judgment
of conviction that petitioner challenged in the prior petition. 2
Petitioner has not obtained authorization from the Court of Appeals to file a second or
successive petition.
Discussion

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Under 28 U.S.C. § 2244(b)(3), before a second or successive petition is filed in the

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federal district court, the petitioner must move in the court of appeals for an order authorizing

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the district court to consider the petition. A federal district court does not have jurisdiction to

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entertain a successive petition absent such permission. E.g., Burton v. Stewart, 549 U.S.

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147, 149 & 152-53 (2007).

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In the present petition, petitioner seeks to challenge the same judgment of conviction

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that he previously challenged in No. 2:09-cv-00834. The present petition constitutes a second

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or successive petition because that prior petition was dismissed on the merits. See, e.g.,

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Henderson v. Lampert, 396 F.3d 1049, 1052-53 (9th Cir. 2005).

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In his show-cause response, petitioner concedes that the current petition is a

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successive petition. (ECF No. 9, at 4, lines 9-10.) To the extent that petitioner references 28

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U.S.C. § 2244(b)(2)(B) as a potential basis for authorizing pursuit of a successive petition, he

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To the extent that petitioner seeks to do so indirectly in Grounds 1 and 2 by instead claiming error in
the state court judgments denying state post-conviction review, the Court does not have jurisdiction over such
claims. The Court has jurisdiction under 28 U.S.C. § 2254 only over a collateral challenge to a state court
judgment of conviction. The Court otherwise does not have jurisdiction to entertain collateral attacks on other
types of judgments; and a federal district court does not exercise appellate jurisdiction over the state courts.
Accordingly, claims of procedural error in state post-conviction proceedings are not cognizable in a federal
habeas corpus proceeding, even when such claims are based on the federal constitution. See, e.g., Franzen
v. Brinkman, 877 F.2d 26 (9th Cir. 1989).

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must present any such argument to the Court of Appeals in the first instance via an

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application to that court for authorization to file a second or successive petition.3 See 28

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U.S.C. § 2244(b)(3)(A) & (C). His remaining arguments – such as those relying upon his lay

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status or pertaining to the application of other procedural bars – do not provide a basis for

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considering a successive petition under § 2244(b)(2); and to any arguendo extent that they

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are relevant, they also must be presented to the Court of Appeals in the first instance.

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IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice
for lack of jurisdiction as a successive petition.

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IT FURTHER IS ORDERED, pursuant to Rule 4 of the Rules Governing Section 2254

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Cases, that the Clerk of Court shall make informal electronic service upon respondents by

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adding Nevada Attorney General Adam P. Laxalt as counsel for respondents and directing

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a notice of electronic filing of this order to his office, that the Clerk shall direct regenerated

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notices of electronic filing of the prior filings herein to the attorney general, and that counsel

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shall file a notice of appearance within twenty-one (21) days of entry of this order. No other

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response is required from respondents other than to respond to any orders of a

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reviewing court.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Jurists of

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reason would not find the district court's dismissal of the successive petition without prejudice

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to be debatable or wrong, for the reasons discussed herein.

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The Court notes with regard to § 2244(b)(2)(B) that petitioner neither identifies any specific factual
predicate that could not have been discovered previously through reasonable diligence nor comes forward
with evidence of actual factual innocence as opposed to argument as to alleged constitutional violations.
See, e.g. ECF No. 9, at 6-7 (“Petitioner does not challenge his innocence nor guilt . . . .”).
Petitioner maintains that he is unable to access the state court online docket website referenced in
the Court’s orders. The purpose of the Court’s citation is to identify for any reviewing court the source of the
material of which the Court has taken judicial notice. The Court’s ability to take judicial notice of the docket
records of other courts is not cabined by state corrections department restrictions on inmate web access.

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Petitioner requests that he be given an opportunity to seek authorization to file a successive petition.
Leave of the district court is not required for petitioner to apply to the Court of Appeals for authorization to file
a second or successive petition. However, petitioner first must obtain such authorization before filing a
successive petition in the district court. 28 U.S.C. § 2244(b)(3)(A).

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The Clerk further shall SEND petitioner a copy of the petition, order of dismissal and
judgment (ECF Nos. 1, 11 & 12) from 2:09-cv-00834-LDG-RJJ with this order.
The Clerk shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED: November 22, 2017.

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__________________________________
HOWARD D. MCKIBBEN
United States District Judge

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