Medina v. State of Nevada

• Court: District Court, D. Nevada
• Decided: March 7, 2024
• Docket: 2:24-cv-00258
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Albert Medina, Case No.: 2:24-cv-00258-APG-EJY

4 Petitioner Order Dismissing Successive Petition Without Prejudice for Lack of Jurisdiction 5 v. and Denying IFP Application and All Other Pending Motions 6 State of Nevada, [ECF Nos. 1, 3, 5, 6] 7 Respondents

8 Petitioner Albert Medina, a pro se Nevada prisoner, has filed an amended petition for 9 writ of habeas corpus (ECF No. 6), an application for leave to proceed in forma pauperis (IFP 10 (ECF No. 1)), motion for appointment of counsel (ECF No. 3), and a motion to correct illegal 11 sentence (ECF No. 5). I dismiss the petition for lack of jurisdiction, deny the IFP application and 12 all other pending motions, and direct the Clerk of the Court to close this case. 13 Background 14 Medina challenges a 2004 conviction and sentence imposed by the Eighth Judicial 15 District Court for Clark County. State of Nevada v. Medina, Case No. 03C189933. The state 16 court entered a judgment of conviction for five counts of sexual assault on a victim 65 years or 17 older, and one count of first-degree kidnapping of a victim 65 years or older. The state court 18 sentenced Medina to six concurrent terms of life plus a consecutive term of life with the 19 possibility of parole after five years for the kidnapping count, with an equal and consecutive term 20 of life without the possibility of parole after five years for the older victim enhancement. 21 The Nevada Supreme Court affirmed his conviction on appeal. Medina filed a state 22 habeas postconviction petition, which the state court denied. The Nevada Supreme Court 23 affirmed the denial of relief. In July 2009, Medina filed a federal habeas petition in this court, 1 which was denied on the merits. See Medina v. Williams, Case No. 2:09-cv-01331-GMN-GWF, 2 ECF No. 49. The Ninth Circuit affirmed on appeal. Id. at ECF No. 59. 3 Discussion 4 The current petition is second or successive because a prior federal petition was decided

5 on its merits, Medina attacks the same judgment of conviction, and the claims Medina raises here 6 are based on facts that had occurred by the time of the prior petition. See Brown v. Muniz, 889 7 F.3d 661, 667 (9th Cir. 2018) (“[A] federal habeas petition is second or successive if the facts 8 underlying the claim occurred by the time of the initial petition, . . . and if the petition challenges 9 the same state court judgment as the initial petition.”). Under 28 U.S.C. § 2244(b)(3), before a 10 second or successive petition is filed in the federal district court, a petitioner must move in the 11 court of appeals for an order authorizing the district court to consider the petition. A federal 12 district court does not have jurisdiction to entertain a successive petition absent such permission. 13 Brown, 889 F.3d at 667. 14 Medina has made no allegation or showing that he has received authorization from the

15 the Ninth Circuit to file this second or successive petition, nor do the records of the Ninth Circuit 16 reflect that he has sought to obtain any such authorization. This second or successive petition 17 must therefore be dismissed for lack of jurisdiction. 18 Conclusion 19 I THEREFORE ORDER: 20 1. The amended petition (ECF No. 6) is dismissed without prejudice for lack of 21 jurisdiction. 22 2. The application for leave to proceed in forma pauperis (ECF No. 1) is denied as 23 moot. 1 3. The motion for appointment of counsel (ECF No. 3) and motion to correct illegal 2 sentence (ECF No. 5) are denied as moot. 3 4. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, that the Clerk will 4 make informal electronic service upon Respondents by adding Nevada Attorney 5 General Aaron D. Ford as counsel for Respondents and directing a notice of 6 electronic filing of this order to his office. No response is required from Respondents 7 other than to respond to any orders of a reviewing court. 8 5. The Clerk of the Court is directed to enter judgment accordingly and close this case. 9 6. Acertificate of appealability is denied because jurists of reason would not find 10 debatable whether the Court is correct in dismissing this action. DATED this 7th day of March, 2024.

13 ANDREW P. GORDON 14 UNITED STATES DISTRICT JUDGE

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