Garcia v. Hutchings ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Case No.: 2:21-cv-01222-JAD-BNW Ramon Jacobo Garcia, 5 Petitioner, Order Granting Application to Proceed 6 In Forma Pauperis and Dismissing Case v. 7 William Hutchings, [ECF Nos. 1, 1-3] 8 Respondent. 9 10 Nevada State Prisoner Ramon Jacobo Garcia brings this petition for federal habeas relief 11 under 28 U.S.C. § 2254 to challenge his state-court conviction and sentence for numerous felony 12 counts including two counts of first-degree kidnapping with the use of a deadly weapon.1 Having 13 reviewed this habeas petition under Rule 4 of the Rules Governing Section 2254, I find that it must 14 be dismissed because it is an unauthorized successive petition. So, although I grant Garcia’s request 15 to proceed in forma pauperis, I dismiss this case and deny his motion for appointment of counsel. 16 Background 17 Garcia has been in prison in Nevada since 2001 with a projected release date in 2031.2 18 This is not the first time that Garcia has sought federal habeas relief for the same sentence. His 19 first habeas action in this court was filed in 2008 and challenged the same judgment of 20 conviction.3 The court denied the petition in its entirety,4 and Garcia did not appeal. 21 1 ECF No. 1. 22 2 ECF No. 1-1 at 2. 23 3 Garcia v. Neven, No. 2:08-CV-00480-JCM, 2012 WL 115575 (D. Nev. Jan. 13, 2012). 4 Id. 1 Analysis 2 If a petitioner has previously filed an application for habeas relief under section 2254 3 which has been denied on the merits, the court cannot grant relief with respect to a claim that 4 was presented in the prior application.5 In addition, the court cannot grant relief with respect to a 5 claim that was not presented in the prior application unless: 6 (A) the applicant shows that the claim relies on a new rule of 7 constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 8 (B)(i) the factual predicate for the claim could not have been discovered 9 previously through the exercise of due diligence; and 10 (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 11 evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.6 12 13 Moreover, § 2244(b)(3) requires a petitioner to obtain leave from the appropriate court of 14 appeals before filing a second or successive petition in the district court. 15 This court denied the claims in Garcia’s 2008 federal petition on their merits.7 That 16 denial makes his instant petition a second or successive one that he needed appellate court’s 17 permission to file. Because Garcia has not secured an order from the court of appeals 18 authorizing this action as § 2244(b)(3) requires, this court lacks jurisdiction to consider his new 19 habeas petition.8 Therefore, I must summarily dismiss this action under Rule 4. 20 21 5 28 U.S.C. § 2244(b)(1). 22 6 28 U.S.C. § 2244(b)(2). 7 Garcia v. Neven, 2012 WL 115575, at *3–12. 23 8 See Burton v. Stewart, 549 U.S. 147, 153 (2007). 2 Conclusion 2 IT IS THEREFORE ORDERED that Garcia’s motion for leave to proceed in forma 3] pauperis [ECF No. 1] is GRANTED. 4 IT IS FURTHER ORDERED the petition for writ of habeas corpus is DISMISSED with prejudice and without leave to amend, and a certificate of appealability is denied because jurists 6] of reason would not find the court’s dismissal of this action to be debatable or incorrect. 7 IT IS FURTHER ORDERED that Garcia’s second motion for leave to proceed in forma 8|| pauperis and motion for appointment of counsel [ECF Nos. 1-2 and 1-3] are DENIED as moot. 9 IT IS FURTHER ORDERED that the Clerk of Court is directed to FILE the petition (ECF No. 1-1) and accompanying motions (ECF Nos. 1-2 and 1-3), ENTER JUDGMENT, and CLOSE THIS CASE. 12 Dated: June 30, 2021 13 US. District Fudge Jennifer A. Dorsey 14 15 16 17 18 19 20 21 22 23