Vasquez v. Baca et al

Filing 7

ORDER directing the Clerk to file the petition; petitioner shall SHOW CAUSE in writing why thepetition should not be dismissed for lack of jurisdiction as a successive petition by 11/03/2017; if petitioner does not timely respond to this orde r, the petition will be dismissed as a successive petition without further advance notice; if petitioner responds but fails to demonstrate that the petition is not subject to dismissal as a successive petition, the action will be dismissed; all asser tions of fact made by petitioner in response to this show-cause order must be detailed, must be specific as to time and place, and mustbe supported by competent evidence; petitioner thus must attach copies of all materials upon which he bases his argument that the petition should not be dismissed as a successive petition. Unsupported assertions of fact will be disregarded. Signed by Judge Howard D. McKibben on 10/03/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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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 for initial review.
The filing fee has been paid.

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Following initial review, it appears that the Court lacks jurisdiction over the petition

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because it constitutes a successive petition. Petitioner therefore will be directed to show

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cause why the petition should not be dismissed without prejudice for lack of jurisdiction.

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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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Petitioner asserts in response to the pertinent inquiry incorrectly that the present

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petition is his first federal petition. He thus does not reflect that he has obtained permission

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to file a successive petition from the Court of Appeals. (ECF No. 1-1, at 2.) 2

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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. 3

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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). In the present petition, petitioner seeks to challenge the same

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judgment of conviction that he previously challenged in No. 2:09-cv-00834. The present

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petition constitutes a second or successive petition because that prior petition was dismissed

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on the merits. See, e.g., Henderson v. Lampert, 396 F.3d 1049, 1052-53 (9th Cir. 2005).

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Petitioner accordingly must show cause why the petition should not be dismissed for lack of

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jurisdiction as a successive petition.

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Petitioner is cautioned that making a false statement in a petition signed pursuant to a declaration
under penalty of perjury may subject petitioner to prosecution for perjury. Further, the Court may refer the
matter to correctional authorities for possible disciplinary proceedings for making a false statement to a court.
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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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IT THEREFORE IS ORDERED that the Clerk of Court shall file the petition4 and that,

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within thirty (30) days of entry of this order, petitioner shall SHOW CAUSE in writing why the

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petition should not be dismissed for lack of jurisdiction as a successive petition. If petitioner

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does not timely respond to this order, the petition will be dismissed as a successive petition

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without further advance notice. If petitioner responds but fails to demonstrate that the petition

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is not subject to dismissal as a successive petition, the action will be dismissed.

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IT IS FURTHER ORDERED that all assertions of fact made by petitioner in response

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to this show-cause order must be detailed, must be specific as to time and place, and must

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be supported by competent evidence. The Court will not consider any assertions of fact that

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are not specific as to time and place, that are not made pursuant to a declaration under

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penalty of perjury based upon personal knowledge, and/or that are not supported by

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competent evidence filed by petitioner in the federal record. Petitioner thus must attach copies

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of all materials upon which he bases his argument that the petition should not be dismissed

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as a successive petition. Unsupported assertions of fact will be disregarded.

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DATED: October 3, 2017.

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__________________________________
HOWARD D. MCKIBBEN
United States District Judge

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Nothing herein suggests that the petition is free of other deficiencies, including, but not limited to
untimeliness under 28 U.S.C. § 2244(d).

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