Beverly v. Donat et al, No. 3:2008cv00409 - Document 11 (D. Nev. 2009)
Court Description: ORDER that the petition shall be DISMISSED without prejudice as a successive petition. FURTHER ORD that, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Clerk shall serve a cpy of this ord, the judgment, and the amended petition b y sending same by cert mail (#7003 2260 0003 9700 9785) to the Office of the AG, Criminal Division, 100 North Carson St., Carson City, NV 89701-4717. Sent on 5/8/2009. No response is required. The Clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Judge Edward C. Reed, Jr on 5/7/2009. (Copies have been distributed pursuant to the NEF - KL)
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Beverly v. Donat et al Doc. 11 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 9 LLOYD STEVEN BEVERLY, JR., Petitioner, 10 11 3:08-cv-00409-ECR-RAM ORDER vs. 12 13 14 BILL DONAT, et al., Respondents. 15 16 This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte 17 inquiry as to whether the petition is subject to dismissal as a successive petition. This order 18 follows upon the Court’s earlier show cause order (#9) and petitioner’s response (#10). Background 19 20 Petitioner Lloyd Steven Beverly, Jr. seeks to challenge his January 2000 judgment of 21 conviction and sentencing thereunder following upon his conviction, pursuant to a jury verdict, 22 of one count of conspiracy to commit burglary, two counts of burglary, one count of attempted 23 burglary, and one count of possession of burglary tools, together with his adjudication as a 24 habitual criminal. It appears from the amended petition and attachments that petitioner was 25 sentenced to three consecutive terms of 60 to 190 months each in prison and two concurrent 26 terms of one year each in jail. 27 Petitioner does not dispute that he previously filed a federal petition in this Court 28 challenging the same judgment of conviction in No. 3:03-cv-00105-ECR-RAM. He further Dockets.Justia.com 1 acknowledges that the petition in that matter was denied on the merits and that he has not 2 received permission from the Court of Appeals to file a successive petition. Review of this 3 Court’s records in the prior matter confirms that the prior petition was denied on the merits, 4 with final judgment being entered on January 25, 2006. No appeal was taken from the 5 judgment of dismissal. No. 3:03-cv-00105-ECR-RAM, ## 17 & 18. Governing Law 6 7 Under 28 U.S.C. § 2244(b)(1) & (2), a claim in a “second or successive petition under 8 section 2254" must be dismissed if it was presented in a prior petition; and, if the claim was 9 not presented in the prior petition, it may be considered only in the circumstances delineated 10 in § 2244(b)(2). Under 28 U.S.C. § 2244(b)(3)(A), before a second or successive petition is 11 filed in the district court, the applicant must move in the Court of Appeals for an order 12 authorizing the district court to consider the petition. If an earlier federal petition is dismissed 13 on the merits, any subsequent petition challenging the same judgment of conviction or 14 sentence will constitute a second or successive petition. See,e.g., Henderson v. Lampert, 15 396 F.3d 1049, 1052-53 (9th Cir. 2005). Discussion 16 17 18 Petitioner has failed to demonstrate that the petition is not subject to dismissal as a successive petition. 19 First, petitioner maintains that he filed the February 2009 amended petition in this 20 matter “pursuant to a previous order of this Court.” #10, at 3. Petitioner apparently is referring 21 to the prior preliminary screening order (#5). That order directed petitioner to file an amended 22 petition because petitioner did not sign the original petition, petitioner failed to follow the 23 instructions in the petition form regarding the statement of his claims, petitioner failed to 24 respond to the exhaustion inquiries on the petition form, and petitioner failed to attach copies 25 of all state court written decisions regarding his conviction. The order did not constitute 26 permission from this Court to file a successive petition, and the order merely directed the 27 petitioner to correct multiple pleading deficiencies that would result in the dismissal of the 28 petition “on its face” without regard to any other issues. See #5, at 1, line 22. More to the -2- 1 point, petitioner must obtain permission not from this Court but instead from the Court of 2 Appeals to file a successive petition. This Court does not have the authority to give a 3 petitioner permission to file a successive petition. Indeed, the district court does not have 4 jurisdiction over a successive habeas petition unless petitioner first has obtained permission 5 from the Court of Appeals to file the successive petition. See,e.g., Cooper v. Calderon, 274 6 F.3d 1270, 1274-75 (9th Cir. 2001). 7 Second, petitioner maintains that he is actually innocent as to the habitual criminal 8 adjudication because of alleged deficiencies in the habitual criminal adjudication. Such an 9 argument, however, must be presented to the Court of Appeals in the first instance in seeking 10 permission to file a successive petition. The argument does not provide a basis for avoiding 11 the requirement that the petitioner first obtain permission from the Court of Appeals to file a 12 successive petition. See 28 U.S.C. § 2244(b)(2) & (3). 13 Third, petitioner maintains that, because he allegedly is actually innocent as to the 14 habitual criminal adjudication, he therefore can overcome the federal one-year time bar and 15 any other procedural bars. Contrary to the petitioner’s assertions, however, this Court did not 16 order petitioner to show cause why the petition should not be dismissed as successive and/or 17 as time-barred. The Court instead ordered the petitioner – at this juncture – to show cause 18 only why the petition should not be dismissed as successive. Petitioner’s actual innocence 19 argument must be made to the Court of Appeals in the first instance pursuant to Section 20 2244(b)(2) & (3). 21 The present petition therefore must be dismissed as a successive petition due to 22 petitioner’s failure to first secure authorization from the Court of Appeals to file the petition. 23 IT THEREFORE IS ORDERED that the petition shall be DISMISSED without prejudice 24 as a successive petition. 25 IT FURTHER IS ORDERED that, pursuant to Rule 4 of the Rules Governing Section 26 2254 Cases, the Clerk shall serve a copy of this order, the judgment, and the amended 27 petition by sending same by certified mail to the Office of the Attorney General, Criminal 28 Division, 100 North Carson St., Carson City, NV 89701-4717. No response is required. -3- 1 2 3 The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. DATED: May 7, 2009 4 5 _________________________________ EDWARD C. REED United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-
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