Hubble v. Baker et al

Filing 9

ORDERED that the petition (ECF No. 1 ) is DISMISSED with prejudice as second and successive. A certificate of appealability is DENIED. Clerk shall enter judgment accordingly and close this case. Signed by Judge Larry R. Hicks on 10/2/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHRISTOPHER RYAN HUBBLE,

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Petitioner, ORDER
v.

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Case No. 3:19-cv-00124-LRH-WGC

RENEE BAKER,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the court on the

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parties’ responses to this court’s order to show cause regarding whether the petition is

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time-barred (ECF Nos. 2, 3, 4, 8). In the course of that briefing, it has come to the

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court’s attention that Hubble has previously challenged this judgment of conviction in

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Nevada state case no. 03C189061. See 3:08-cv-00068-BES-RAM. Thus, this petition

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is dismissed as 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

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

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renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244.

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

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396 F.3d 1049, 1053 (9th Cir. 2005).

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In 2008, this court granted respondents’ motion to dismiss Hubble’s habeas

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corpus petition challenging the same judgment of conviction because it was time-

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barred, and judgment was entered. 3:08-cv-00068-BES-RAM, ECF Nos. 10, 11. There

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is no indication that Hubble has obtained authorization from the court of appeals to file a

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successive petition. Thus, this petition is dismissed as a successive petition.

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Reasonable jurists would not find the court’s conclusions to be debatable or wrong, and

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the court will not issue a certificate of appealability.

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IT IS THEREFORE ORDERED that the petition (ECF No. 1) is DISMISSED with
prejudice as second and successive.

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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 shall enter judgment accordingly and

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close this case.

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DATED this 2nd day of October, 2019.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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