Opinion
2:21-cv-01850-APG-BNW
12-08-2021
Fredrick J. Benson, Petitioner, v. William Hutchings, Respondents.
ORDER TO SHOW CAUSE [ECF No. 1-1]
ANDREW P. GORDON UNITED STATES DISTRICT JUDGE
This is a habeas corpus action under 28 U.S.C. § 2254. Petitioner Fredrick Benson has paid the filing fee. I have reviewed the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Benson needs to show cause why I should not dismiss this action as an unauthorized second or successive petition.
Benson is challenging his custody under a judgment of conviction of the Eighth Judicial District Court of the State of Nevada, Case No. 00C168372-3. Benson challenged his custody under the same judgment of conviction in Benson v. Budge, Case No. 3:05-cv-00464-GMN-VPC, 2015 WL 1442293 (D. Nev. Mar. 30, 2015). The court denied that petition on its merits, and the court of appeals denied a certificate of appealability. Consequently, this petition is a second or successive petition under 28 U.S.C. § 2244(b). Benson must first obtain authorization from the Ninth Circuit before this court can consider his petition. 28 U.S.C. § 2244(b)(3). Nothing in the documents that Benson has filed indicates that he has received such authorization. I have reviewed the on-line docket of the Ninth Circuit. In 2020, Benson applied for authorization to file a second or successive petition, but the Ninth Circuit denied his application. Benson v. Dzurenda, Case No. 20-72548. It appears that Benson has not received authorization, and he will need to show cause why I should not dismiss this action.
Benson has submitted a motion for appointment of counsel. I deny this motion because it appears that the Ninth Circuit has not yet authorized Benson to proceed with this action. If Benson can show authorization, then he may renew this motion.
I THEREFORE ORDER the clerk of the court to file the petition for a writ of habeas corpus and the motion for appointment of counsel, currently in the docket at ECF No. 1-1 and 12, respectively.
I FURTHER ORDER that the motion for appointment of counsel is DENIED.
I FURTHER ORDER that Benson will have until January 31, 2022 to show cause in writing why I should not dismiss this action as an unauthorized second or successive petition. Failure to comply with this order will result in the dismissal of this action.
I FURTHER ORDER the clerk to add Aaron Ford, Attorney General for the State of Nevada, as counsel for the respondents.
I FURTHER ORDER that the respondents' counsel must enter a notice of appearance by December 31, 2021, but no further response will be required from the respondents until further order of the court.
I FURTHER ORDER the clerk to provide copies of this order and all prior filings to the Attorney General in a manner consistent with the clerk's current practice, such as regeneration of notices of electronic filing.