Thomas v. State of Nevada

• Court: District Court, D. Nevada
• Decided: May 26, 2023
• Docket: 3:22-cv-00541
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 EDDIE JAMES THOMAS, Case No. 3:22-cv-00541-ART-CLB 5 Petitioner, Order Dismissing Petition as 6 v. Second and Successive, Denying a Certificate of Appealability, and 7 STATE OF NEVADA, et al. Closing Case

8 Respondents.

9 This court reviewed Eddie James Thomas’ pro se petition for writ of habeas 10 11 corpus under Rule 4 of the Rules Governing Section 2254 Cases in the United 12 States District Courts and directed Thomas to show cause as to why the court 13 should not dismiss his petition as second or successive to case no. 3:21-cv- 14 00096-MMD-WGC. (ECF No. 9.) 15 28 U.S.C. § 2244(b)(3)(A) provides: “[b]efore a second or successive 16 application permitted by this section is filed in the district court, the applicant 17 18 shall move in the appropriate court of appeals for an order authorizing the 19 district court to consider the application.” Where a petition has been dismissed 20 with prejudice as untimely or because of procedural default, the dismissal 21 constitutes a disposition on the merits and renders a subsequent petition 22 second or successive for purposes of § 2244. McNabb v. Yates, 576 F.3d 1028, 23 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 24 25 2005). 26 In case no. 3:21-cv-00096-MMD-WGC, Thomas unsuccessfully challenged 27 the manner in which the Nevada Department of Corrections aggregated his 28 1 2 merits and denied a certificate of appealability. (3:21-cv-00096-MMD-WGC at 3 ECF No. 9.) The court denied Thomas’ motion for relief from judgment on March 4 29, 2022. (Id. at ECF No. 12). With the current petition, he seeks to challenge 5 that same judgment of conviction, this time arguing that the state district court 6 erred by relying on an “inapplicable” prior conviction in adjudicating him a 7 habitual criminal. (ECF No. 1-1 at 6.) 8 9 This petition, therefore, is a second or successive habeas corpus petition 10 under § 2244(b). Thomas must obtain authorization from the Ninth Circuit 11 Court of Appeals before this court may consider his petition. 28 U.S.C. § 12 2244(b)(3). He has not demonstrated that he has obtained authorization.1 13 Instead, he argues that this is not a second and successive petition because the 14 2021 federal petition challenged the computation of his sentence, and therefore, 15 16 he should not be required to obtain Ninth Circuit authorization. (ECF No. 10.) 17 That he raises a different claim does not change the fact that this petition is 18 successive. This court lacks jurisdiction to consider this petition without the 19 authorization of the Ninth Circuit. See Burton v. Stewart, 549 U.S. 147 at 152 20 (9th Cir. 2007. Accordingly, this petition is dismissed as second and successive. 21 22 Reasonable jurists would not find this conclusion to be debatable or wrong, and 23 the court will not issue a certificate of appealability. 24 25 1 The court notes that Thomas is aware of the requirement because he sought 26 authorization from the Ninth Circuit to file the petition in Case No. 3:21-cv- 27 00096-MMD-WGC. (See ECF No. 2.) The appeals court determined that due to the entry of an amended judgment of conviction he did not need authorization to 28 file the 2021 petition. (Id.) 1 IT IS THEREFORE ORDERED that the Clerk of Court electronically file Q || petition (ECF No. 1-1). 3 IT IS FURTHER ORDERED that the petition is DISMISSED with prejudice as 4 |! set forth in this order. ° IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel and notice of motion for mercy for the court to allow caption to reflect

8 motion for rule 60(b)(6) (ECF Nos. 3 and 11) are both DENIED as moot. 9 IT IS FURTHER ORDERED that a certificate of appealability will not issue. 10 IT IS FURTHER ORDERED that the Clerk ENTER JUDGMENT accordingly 11 || and close this case. 12 DATED THIS 26' day of May 2023. 13 14 An ns jad jd 15 ANNE R. TRAUM 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28