Turner v. Bean ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JOHN TURNER, Case No. 2:24-cv-01234-APG-EJY 4 Petitioner, Order to Show Cause 5 v. [ECF No. 1-1] 6 JEREMY BEAN, et al., 7 Respondents. 8 Pro se Petitioner John Turner has submitted a Petition for Writ of Habeas Corpus under 9 28 U.S.C. § 2254, a motion for leave to proceed in forma pauperis (“IFP”), and a motion for 10 appointment of counsel. ECF Nos. 1, 1-1 (“Petition”), 1-2. I grant Turner’s motion for leave to 11 proceed IFP; however, for the reasons discussed below, following a review of the Petition under 12 the Rules Governing Section 2254 Cases, I defer ruling on the motion for appointment of counsel 13 and instruct Turner to show cause why the Petition should not be dismissed as second or 14 successive. 15 I. BACKGROUND1 16 Turner challenges a conviction and sentence imposed by the Eighth Judicial District 17 Court for Clark County (“state court”). State of Nevada v. John Turner, Case No. C-16-314750- 18 1. On September 12, 2016, the state court entered a judgment of conviction, pursuant to a guilty 19 plea, for abuse, neglect, or endangerment of a child. Turner was sentenced to 28 to 72 months in 20 prison. Turner appealed, and the Nevada Supreme Court dismissed the appeal as untimely and 21 denied rehearing. On December 5, 2016, Turner filed his first state petition for a writ of habeas 22 23 1I take judicial notice of the online docket records of the Eighth Judicial District Court and Nevada appellate courts, which are accessible at https://www.clarkcountycourts.us/portal and http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 corpus. The state court denied Turner post-conviction relief on March 21, 2017. Turner 2 appealed, and the Nevada Court of Appeals affirmed. Turner then filed three more unsuccessful 3 state habeas petitions. 4 On or about March 21, 2019, Turner initiated a federal habeas corpus proceeding in case 5 number 2:19-cv-00493-JAD-DJA,2 challenging his September 12, 2016, state judgment of 6 conviction. United States District Judge Jennifer A. Dorsey dismissed Turner’s petition with 7 prejudice as time-barred on September 2, 2020, and judgment was entered. Turner did not 8 appeal this order. 9 Turner transmitted his instant Petition on or about July 9, 2024. ECF No. 1-1. 10 II. DISCUSSION 11 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and 12 order a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez 13 v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss 14 petitions that are patently frivolous, vague, conclusory, palpably incredible, or false. Hendricks v. 15 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The court may also dismiss 16 claims at screening for procedural defects. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 17 1998). 18 “[A] federal habeas petition is second or successive if the facts underlying the claim 19 occurred by the time of the initial petition, . . . and if the petition challenges the same state court 20 judgment as the initial petition.” Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018). The 21 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides, in relevant part, 22 23 2I take judicial notice of the online docket records of this case. 1 that a claim presented in a second or successive federal petition that was not presented in a prior 2 petition shall be dismissed unless: 3 (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 4 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as 5 a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant 6 guilty of the underlying offense. 7 28 U.S.C. § 2244(b)(2). Before a second or successive petition may be filed in a federal district 8 court, a habeas petitioner must move in the appropriate court of appeals for an order authorizing 9 the district court to consider the petition. See id. § 2244(b)(3). The district court does not have 10 jurisdiction to entertain a second or successive petition absent such permission. See Brown, 889 11 F.3d at 667. “[I]n cases involving doubt about whether a petition will be deemed second or 12 successive,” the Ninth Circuit has instructed “petitioners to seek authorization in [its] court first, 13 rather than filing directly in the district court.” Goodrum v. Busby, 824 F.3d 1188, 1195 (9th Cir. 14 2016) (citation omitted). 15 Turner’s Petition appears to challenge the same September 12, 2016, judgment of 16 conviction that was challenged in case number 2:19-cv-00493-JAD-DJA. And the petition filed 17 in 2:19-cv-00493-JAD-DJA was dismissed with prejudice. Because Turner did not answer the 18 question on the Petition regarding whether “the Ninth Circuit Court of Appeals [had] given [him] 19 permission to file this successive petition” (see ECF No. 1-1 at 2), I find jurisdiction potentially 20 lacking. As such, Turner must show cause why this action should not be dismissed for a lack of 21 jurisdiction based on the Petition being second or successive. 22 I note, by statute and circuit rule, that I have discretionary authority to transfer Turner’s 23 Petition to the Ninth Circuit Court of Appeals for consideration as an application for leave to file a second-or-successive petition. See 28 U.S.C. § 1631 (stating that whenever a court identifies a lack of jurisdiction, “the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court . . . in which the action or appeal could have been brought at the time it was filed. . .”); 9th Cir. R. 22-3 (“If an unauthorized second or successive section 2254 petition . . is submitted to the district court, the district court may, in the interests of justice, refer it to the 6] court of appeals.”). If Turner desires that I exercise this discretionary authority, he may so state in his response to this Order. 8|| Tl. CONCLUSION 9 I THEREFORE ORDER that the motion for leave to proceed IFP (ECF No. 1) is 10] granted. 1] I FURTHER ORDER that, on or before September 6, 2024, Turner must show cause why 12|| this action should not be dismissed for a lack of jurisdiction based on the Petition being second 13]| or successive. If Turner does not timely and fully respond to this Order, this action will be 14] dismissed without further advance notice. 15 Dated: July 11, 2024 Z 16 ANDREW P. GORDON 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23