Opinion
Case No.: 2:19-cv-00609-APG-NJK
05-29-2019
WILLIAM BELL, Petitioner v. WILLIAMS, et al., Respondents
ORDER
Petitioner William Bell has submitted a pro se 28 U.S.C. § 2254 petition for a writ of habeas corpus. ECF No. 1-1. His application to proceed in forma pauperis (ECF No. 1) is granted. Bell's petition is second and successive, and therefore, it is dismissed.
"Before a second or successive application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Where a petition has been dismissed with prejudice as untimely or because of procedural default, the dismissal constitutes a disposition on the merits and renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).
Bell indicates on the face of his petition that he seeks to challenge the state judgment of conviction in case no. C-221724. ECF No. 1-1, p. 2. I take judicial notice of the court's docket. Bell previously filed in this court case no. 3:11-cv-000741-LRH-WGC, in which he challenged the same state judgment of conviction. On June 8, 2012, that petition was dismissed as untimely and judgment was entered. See 3:11-cv-000741-LRH-WGC, ECF Nos. 16, 17. Bell filed a notice of appeal, and on November 8, 2012, the Ninth Circuit Court of Appeals denied a certificate of appealability. Id. at ECF Nos. 21, 25.
Thereafter, Bell filed case number 3:14-cv-00028-LRH-WGC, which was dismissed as a successive petition. See 3:14-cv-00028-LRH-WGC, ECF Nos. 8, 9. The Ninth Circuit denied a certificate of appealability in that case. Id. at ECF No. 12. --------
This petition, therefore, is a second or successive habeas corpus petition. Henderson, 396 F.3d at 1053. Bell was required to obtain authorization from the Ninth Circuit Court of Appeals before he could proceed. See 28 U.S.C. § 2244(b)(3). He has not indicated that he has received such authorization from the court of appeals. Thus, this petition will be dismissed with prejudice. Reasonable jurists would not find my conclusion to be debatable or wrong, and I will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No. 1) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall DETACH and FILE the petition (ECF No. 1-1).
IT IS FURTHER ORDERED that the petition is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall add Aaron D. Ford, Nevada Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that the Clerk shall electronically serve the petition, along with a copy of this order, on the respondents. No response by respondents is necessary.
IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel (ECF No. 2) is DENIED as moot.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case.
Dated: May 29, 2019
/s/_________
Andrew P. Gordon
United States District Judge