Jones v. Office of the Warden

Filing 3

ORDER - It is therefore ordered that this action is dismissed without prejudice. The Clerk shall enter judgment accordingly and close this case. It is further ordered that a certificate of appealability is denied. Signed by Chief Judge Miranda M. Du on 5/6/2022. (Copies have been distributed pursuant to the NEF - CJD)

Case 3:22-cv-00193-MMD-CLB Document 3 Filed 05/06/22 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT C. JONES,

Case No. 3:22-cv-00193-MMD-CLB

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Petitioner,
v.

ORDER

OFFICE OF THE WARDEN
(NNCC), et al.,

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Respondents.

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Pro se Petitioner, Robert C. Jones, has submitted a pleading to the Court seeking

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relief with respect to his confinement at the Northern Nevada Correctional Center

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(“NNCC”). (ECF No. 1.) Jones’ avenue for relief in this Court would be a petition for writ

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of habeas corpus under 28 U.S.C. § 2254. A petition for writ of habeas corpus filed by a

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person who is not represented by an attorney must be on the form provided by this Court.

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See LSR 3-1, Local Rules of Practice, U.S. District Court of Nevada. Jones’ pleading,

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however, is not on the Court’s approved form.

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In addition, the Court notes that Jones brought a previous habeas action in this

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Court challenging his conviction and sentence. See Jones v. Palmer, 3:11-cv-00467-

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MMD-WGC. In that proceeding, the Ninth Circuit Court of Appeals affirmed this Court's

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denial of Jones’ habeas petition. Id. (ECF No. 77). The United States Supreme Court

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subsequently denied Jones’ petition for writ of certiorari. Id. (ECF No. 92).

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If a petitioner has previously filed an application for habeas relief under section

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2254 which has been denied on the merits, the court cannot grant relief with respect to a

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claim that was presented in the prior application. 28 U.S.C. § 2244(b)(1). In addition, the

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court cannot grant relief with respect to a claim that was not presented in the prior

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application unless:

Case 3:22-cv-00193-MMD-CLB Document 3 Filed 05/06/22 Page 2 of 2

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(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(B)(I) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and

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(ii) the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.

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28 U.S.C. § 2244(b)(2). Moreover, § 2244(b)(3) requires a petitioner to obtain leave from

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the appropriate court of appeals before filing a second or successive petition in the district

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court. Thus, Jones is advised that a habeas petition filed in this Court without an order

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from the court of appeals authorizing such an action may be subject to dismissal for lack

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of jurisdiction. See Burton v. Stewart, 549 U.S. 147, 153 (2007).

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Finally, this matter has not been properly commenced because Jones has neither

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paid the $5.00 filing fee for a habeas proceeding nor filed a completed application to

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proceed in forma pauperis on the Court’s approved form. See Local Rule LSR 1-1. Under

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28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, a petitioner must attach both an inmate

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account statement for the past six months and a properly executed financial certificate to

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his application.

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It is therefore ordered that this action is dismissed without prejudice.

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The Clerk shall enter judgment accordingly and close this case.

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It is further ordered that a certificate of appealability is denied, as jurists of reason

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would not find the Court’s dismissal of this improperly commenced action without

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prejudice to be debatable or incorrect.

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DATED THIS 6th Day of May 2022.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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