Williams v. The State of Nevada et al
Filing
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ORDER directing Clerk to detach and file ECF No. 1 -1 petition; granting ECF No. 1 IFP application; dismissing petition as successive; denying certificate of appealability; directing Clerk to add NV AG as counsel for responde nts and to e-serve petition and this order on respondents (NEFs sent 11/14/2017); directing Clerk to enter judgment accordingly and close case. Signed by Judge Miranda M. Du on 11/13/2017. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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MICHAEL WILLIAMS,
Case No. 3:17-cv-00647-MMD-WGC
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Petitioner,
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ORDER
v.
STATE OF NEVADA, et al.,
Respondents.
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Petitioner Michael Williams has submitted a petition for a writ of habeas corpus
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(ECF No. 1-1). His application to proceed in forma pauperis (ECF No. 1) will be granted.
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Section 2244(3)(A) provides that“[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.” 28 U.S.C. § 2244(3)(A). Where a petition has been dismissed with prejudice
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as untimely or because of procedural default, the dismissal constitutes a disposition on
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the merits and renders a subsequent petition second or successive for purposes of 28
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U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009); Henderson
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v. Lampert, 396 F.3d 1049, 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. 99C162028 (ECF No. 1-1at 3). This Court takes judicial
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notice of its docket, and Williams previously filed case no. 3:04-cv-00225-RCJ-VPC, in
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which he challenged the same state judgment of conviction. On September 28, 2007, this
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Court denied the first petition on the merits. (3:04-cv-00225-RCJ-VPC, ECF Nos. 33, 34.)
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On August 19, 2014, the Ninth Circuit Court of Appeals dismissed petitioner’s untimely
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appeal for lack of jurisdiction. (Id., ECF No. 46.)
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This petition, therefore, is a second or successive habeas corpus petition.
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Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005). Petitioner was required to
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obtain authorization from the Ninth Circuit Court of Appeals before he could proceed with
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a second or successive petition. 28 U.S.C. § 2244(b)(3). Petitioner had not indicated that
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he has received such authorization from the court of appeals. Accordingly, this petition
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will be dismissed as second and successive.
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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 petitioner’s application to proceed in forma pauperis (ECF
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No. 1) is granted.
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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 13th day of November 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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