Chavez v. Baca et al
Filing
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ORDER DISMISSING CASE. Petitioner is DENIED a certificate of appealability. Clerk shall enter judgment accordingly. Signed by Judge Miranda M. Du on 02/08/2013. (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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CHARLES KELLY CHAVEZ,
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Case No. 3:13-cv-00059-MMD-VPC
Petitioner,
ORDER
v.
ISIDRO BACA, et al.,
Respondents.
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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254, by a Nevada state prisoner.
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The petition in the instant action challenges petitioner’s state conviction in case
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number 97C146562. Petitioner previously challenged this same conviction in this Court,
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filed under case number 2:03-cv-00173-KJD-LRL. The petition in case number 2:03-cv-
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00173-KJD-LRL was reviewed on the merits and denied by order filed May 15, 2008.
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(Dkt. no. 32.) Judgment was entered on May 16, 2008. (Dkt. no. 33.) Petitioner
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appealed. (Dkt. no. 34.) By order filed June 21, 2010, the United States Court of
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Appeals for the Ninth Circuit affirmed the denial of the habeas petition. (Dkt. no. 42.)
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“Before a second or successive application permitted by this section is filed in the
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district court, the applicant shall move in the appropriate court of appeals for an order
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authorizing the district court to consider the application.” 28 U.S.C. § 2244(3)(A). The
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instant petition is a successive petition, which requires petitioner to seek and obtain
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leave of the Ninth Circuit Court of Appeal to pursue. See 28 U.S.C. § 2244(b)(3) et seq.
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In the prior habeas case in which petitioner challenged his conviction (case number
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2:03-cv-00173-KJD-LRL), the Court reviewed the merits of the petition and denied the
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petition by order filed May 15, 2008. (Dkt. no. 32.) Because the prior habeas corpus
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petition was decided on the merits, the instant habeas petition is a successive petition.
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McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). Although petitioner in the instant
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case has attached to his petition an application for leave to file a second or successive
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petition (dkt. no. 1-3), he has not presented this Court with proof that he has actually
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obtained leave to file a successive petition from the Ninth Circuit Court of Appeals.
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Therefore, the instant petition will be dismissed as successive.
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In order to proceed with any appeal, petitioner must receive a certificate of
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appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9 th Cir. R. 22-1; Allen v.
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Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236
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F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a substantial
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showing of the denial of a constitutional right” to warrant a certificate of appealability.
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Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The
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petitioner must demonstrate that reasonable jurists would find the district court's
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assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529
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U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of
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demonstrating that the issues are debatable among jurists of reason; that a court could
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resolve the issues differently; or that the questions are adequate to deserve
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encouragement to proceed further. Id.
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Pursuant to the December 1, 2009, amendment to Rule 11 of the Rules
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Governing Section 2254 and 2255 Cases, district courts are required to rule on the
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certificate of appealability in the order disposing of a proceeding adversely to the
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petitioner or movant, rather than waiting for a notice of appeal and request for certificate
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of appealability to be filed. Rule 11(a). This Court has considered the issues raised by
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petitioner, with respect to whether they satisfy the standard for issuance of a certificate
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of appealability, and determines that none meet that standard. The Court will therefore
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deny petitioner a certificate of appealability.
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IT IS THEREFORE ORDERED that this action is DISMISSED as a successive
petition.
IT IS FURTHER ORDERED that petitioner is DENIED a Certificate of
Appealability.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly.
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DATED THIS 8th day of February 2013.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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