Lyons v. Baca ( 2019 )

2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 WILLIAM LYONS, Case No. 3:18-cv-00523-MMD-WGC 10 Petitioner, ORDER v. 11 ISIDRO BACA, et al., 12 Respondents. 13 14 The Court instructed Petitioner to show cause why the Court should not dismiss 15 this action as an unauthorized second or successive petition. (ECF No. 4.) Petitioner has 16 filed a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (ECF No. 9.) 17 Petitioner does not persuade the Court, and the Court dismisses the action. 18 Petitioner commenced this action with a Rule 60(b) motion. The Court reviewed it 19 and determined that the motion was a disguised attempt to file a second or successive 20 habeas corpus petition pursuant to 28 U.S.C. § 2254. (ECF No. 4 at 3 (citing Jones v. 21 Ryan, 733 F.3d 825, 834 (9th Cir. 2013)).) Petitioner had not received authorization from 22 the Court of Appeals to file the Petition. See 28 U.S.C. § 2244(b)(3). 23 The current Rule 60(b) motion (ECF No. 9) is no different. Petitioner does not show 24 cause why the Court should not dismiss the action. Petitioner does not argue that the 25 Court's determinations in its earlier order were mistaken. Instead, Petitioner again 26 presents grounds for relief from the state-court amended judgment of conviction. The 27 Court cannot consider the Petition because the Court of Appeals has not authorized its 28 filing. The Court dismisses the action. 1 Petitioner has filed a motion for appointment of counsel (ECF No. 10). The Court 2 || denies the motion because the Court must dismiss the action. However, Petitioner notes 3 || that he has an argument for actual innocence that counsel can develop. (ECF No. 10 at 4 || 4-5.) If Petitioner has an argument for actual innocence, then he needs to present that 5 || argument to the Court of Appeals in an application for authorization to file a second or 6 || successive petition. 7 Reasonable jurists would not find the Court's determinations to be debatable or 8 || wrong, and the Court will not issue a certificate of appealability. 9 It is therefore ordered that the motion pursuant to Rule 60(b) of the Federal Rules 10 || of Civil Procedure (ECF No. 9) is denied. 11 It is further ordered that the motion for appointment of counsel (ECF No. 10) is 12 || denied. 13 It is further ordered that this action is dismissed because it is an unauthorized 14 || second or successive habeas corpus petition. The Clerk of the Court is instructed to enter 15 || judgment accordingly and close this action. 16 It is further ordered that a certificate of appealability will not issue. 17 DATED THIS 6" day of August 2019. 18 19 4. Sf J IRANDA M. DU 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28