Abbott v. Williams ( 2023 )

2 DISTRICT OF NEVADA 3 4 David Roy Abbott, Case No. 2:23-00558-CDS-VCF 5 Petitioner Order Dismissing Writ of Habeas Corpus, Denying Application to Proceed in Forma v. 6 Pauperis, Denying Motion for Appointment of Counsel, and Closing Case 7 Brian Williams, et al., [ECF Nos. 1, 4] 8 Respondents 9 10 This pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 1-1) 11 comes before me for initial review under the Rules Governing Section 2254 Cases. Petitioner 12 David Roy Abbott also filed an application to proceed in forma pauperis (ECF No. 1) and a motion 13 for appointment of counsel. ECF No. 4. 14 Following review of the petition, I dismiss it for lack of jurisdiction, as the petition is 15 second or successive, and the petitioner has not shown that he has obtained authorization from 16 the Court of Appeals to file a second or successive petition. As I lack jurisdiction over the 17 petition, Abbott’s motion for appointment of counsel and IFP application are also denied. 18 Petitioner challenges 2010 judgments of conviction entered in the Second Judicial 19 District Court for Washoe County for trafficking in a controlled substance, conspiracy to sell a 20 controlled substance, ex-felon in possession of a firearm, and possession of a controlled 21 substance. See State of Nevada v. David Roy Abbott, Case Nos. CR09-1603, CR09-1604. 1 The state 22 court sentenced petitioner under the habitual criminal statute to life in prison without the 23 possibility of parole. The cases were consolidated on appeal. 24 Petitioner previously challenged the judgment of conviction in Case Nos. CR09-1603 and 25 CR09-1604 in federal court. See Case No. 3:14-cv-00599-MMD-WGC. That petition was 26 1 The court takes judicial notice of the online docket records of the Second Judicial District Court and 27 Nevada appellate courts. The docket records may be accessed by the public online at: https://www.washoecourts.com/Query/DetailedCaseSearch and 28 http://caseinfo.nvsupremecourt.us/public/caseSearch.do. According to state court records, no intervening 2 and certificate of appealability was denied. Id. at ECF No. 25. Petitioner acknowledges that he 3 previously challenged the judgment of conviction at issue in this case in federal court. ECF No. 4 1-1 at 2. 5 “[D]ismissal of a section 2254 habeas petition for failure to comply with the statute of 6 limitations renders subsequent petitions second or successive for purposes of . . . 28 U.S.C. 7 § 2244(b).” McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). A petition is second or 8 successive if it attacks the same judgment of conviction as a prior federal petition that was 9 decided on its merits and raises claims based on facts that had occurred by the time of the prior 10 petition. Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018), cert. denied sub nom. Brown v. Hatton, 139 S. 11 Ct. 841, 202 L. Ed. 2d 610 (2019) (“It is now understood that a federal habeas petition is second 12 or successive if the facts underlying the claim occurred by the time of the initial petition, . . . and 13 if the petition challenges the same state court judgment as the initial petition. . . .”). 14 Here, Abbott asserts that his petition should not be considered second or successive 15 because the ineffective assistance of trial and appellate counsel claims that he alleges in this 16 action have not been previously presented. ECF No. 1-1 at 5. These claims, however, appear to be 17 based on facts that existed at the time of his prior federal petition. Although petitioner asserts 18 that his prior federal petition was inartfully pled, the set of facts underlying his claims 19 nonetheless existed at the time of the prior federal petition and thus could have been raised in 20 the prior petition. As such, the instant petition is second or successive. 21 Under 28 U.S.C. § 2244(b)(3), before a second or successive petition is filed in the 22 federal district court, the petitioner must move in the Court of Appeals for the Ninth Circuit for 23 an order authorizing the district court to consider the petition. A federal district court does not 24 have jurisdiction to entertain a successive petition absent such permission. Brown, 889 F.3d at 25 667. Although petitioner attached his July 20, 2016, application for leave to file second or 26 successive petition to the Court of Appeals for the Ninth Circuit, he makes no allegation or 27 showing that he has received authorization from the Court of Appeals to file this second or 28 successive petition. ECF No. 1-2 at 22-31. This second or successive petition must therefore be 2 motions are hereby denied. 3 IT IS THEREFORE ORDERED that this action is dismissed without prejudice for lack 4 of jurisdiction. 5 IT IS FURTHER ORDERED that petitioner’s application to proceed in forma pauperis 6 [ECF No. 1] and motion for appointment of counsel [ECF No. 4] are DENIED as moot. 7 IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability, as 8 jurists of reason would not find the dismissal of the petition on jurisdictional grounds to be 9 debatable or wrong. 10 IT IS FURTHER ORDERED that under Rule 4 of the Rules Governing Section 2254 11 Cases, the Clerk of Court is directed to add Nevada Attorney General Aaron D. Ford as counsel 12 for respondents and informally serve the Nevada Attorney General by directing a notice of 13 electronic filing of this order to his office. No response is required from respondents other than 14 to respond to any orders of a reviewing court. 15 The Clerk of the Court is directed to enter final judgment accordingly, dismissing this 16 action without prejudice, and close this case. 17 DATED: May 3, 2023 18 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28