McCoy v. Gitre

• Court: District Court, D. Nevada
• Decided: January 22, 2020
• Docket: 3:20-cv-00017
• Status: Unknown

Opinion

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 6 DARREN LAMONT McCOY, Case No. 3:20-cv-00017-MMD-WGC 7 Petitioner, ORDER v. 8 9 WILLIAM GITTERE, et. al, 10 Respondents. 11 12 Petitioner Darren Lamont McCoy, a Nevada prisoner, has submitted a petition for 13 writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) For the reasons 14 provided below, the Court will dismiss the petition and deny Petitioner a certificate of 15 appealability. 16 As an initial matter, Petitioner has not filed an application to proceed in forma 17 pauperis or paid the filing fee. Accordingly, this matter has not been properly commenced. 18 See 28 U.S.C. § 1915(a)(2) and Local Rules LSR1-1, 1-2. 19 More importantly, however, the Court also notes that Petitioner had a previous 20 case under 28 U.S.C. § 2254 with respect to the conviction challenged in this newly- 21 submitted petition: McCoy v. Williams, et. al, 2:17-cv-01881-JAD-GWF. In that 22 proceeding, the Court dismissed the petition with prejudice based on a finding it was 23 untimely-filed. See ECF No. 15, 2:17-cv-01881-JAD-GWF. Petitioner did not appeal that 24 determination. 25 Under 28 U.S.C. § 2244(b), where the petitioner has previously filed an application 26 for habeas relief under section 2254 which has been denied on the merits, the court 27 /// 1 cannot grant relief with respect to a claim that was presented in a prior application ((b)(1)) 2 or a claim that was not presented in a prior application ((b)(2)) unless: 3 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the 4 Supreme Court, that was previously unavailable; or 5 (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 6 (ii) the facts underlying the claim, if proven and viewed in light of 7 the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable 8 factfinder would have found the applicant guilty of the underlying offense. 9 In addition, 28 U.S.C. § 2244(b)(3) requires a petitioner to obtain leave from the 10 appropriate court of appeals before filing a second or successive petition in the district 11 court. 12 The dismissal of a federal petition on the ground of untimeliness is a determination 13 “on the merits” for purposes of § 2244(b). McNabb v. Yates, 576 F.3d 1028, 1030 (9th 14 Cir. 2009). Even if Petitioner can make a sufficient showing that the exceptions outlined 15 in 28 U.S.C. § 2244(b)(2) apply, he has failed to secure an order from the court of appeals 16 authorizing this action as required by 28 U.S.C. § 2244(b)(3). Therefore, this Court is 17 without jurisdiction to consider the habeas petition filed herein. See Burton v. Stewart, 18 549 U.S. 147, 157 (2007). 19 Certificate of Appealability 20 If Petitioner seeks to appeal this decision, he must first obtain a certificate of 21 appealability. See 28 U.S.C. § 2253(c) (providing that an appeal may not be taken to the 22 court of appeals from a final order in a habeas corpus proceeding unless a circuit justice 23 or judge issues a certificate of appealability); Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 24 2005) (per curiam) (holding that a certificate of appealability is required when the district 25 court dismisses a motion on the ground that it is an unauthorized, successive collateral 26 attack). When a § 2254 petition is denied on procedural grounds, a certificate of 27 appealability should issue only when the petitioner shows that reasonable jurists “would 1 || find it debatable whether the district court was correct in its procedural ruling.” Slack v. 2 || McDaniel, 529 U.S. 473, 484 (2000). Petitioner cannot make the necessary showing. 3 It is therefore ordered that this habeas proceeding is dismissed for lack of 4 || jurisdiction. The Clerk will enter judgment accordingly. 5 It is further ordered that a certificate of appealability is denied. 6 DATED THIS 22"¢ day of January 2020. 7 8 AS MIRANDA M. DU 9 CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28