Zacarias-Lopez v. Johnson

Opinion

Elder Zacarias-Lopez, Case No.: 2:20-cv-00175-KJD-BNW

Petitioner, Order v.

Calvin Johnson,

Respondent.

This is a federal habeas proceeding under 28 U.S.C. § 2254 in which Elder Zacarias- Lopez challenges his Nevada state conviction for murder with use of a deadly weapon. On October 23, 2020, respondents filed a motion to dismiss Zacarias-Lopez’s habeas petition arguing that the petition is successive under 28 U.S.C. § 2244(b) and time-barred because it was not filed within one-year of the date his conviction became final as required by 28 U.S.C. §2244(d)(1)(A). ECF No. 17. Despite having over five months to respond, Zacarias-Lopez has not filed an opposition to the motion to dismiss. Finding respondents’ arguments meritorious, the court will grant the motion. In a previous habeas action in this court challenging his initial 2002 state court conviction for the same crime, the court granted Zacarias-Lopez habeas relief and ordered that he be provided with a new penalty hearing in state court. Zacarias-Lopez v. Neven, 2:05-cv-01156- JCM-PAL; ECF No. 37. Zacarias-Lopez subsequently waived his right to a new hearing in state court and, instead, negotiated a lesser sentence of 20 to 50 years with a consecutive like sentence for use of a deadly weapon. ECF No. 20-32. The state district court entered an amended judgment of conviction on April 5, 2012. ECF No. 20-35. The Nevada Supreme Court affirmed

the conviction and sentence on May 13, 2013. ECF No. 21-24. In its initial screening order in this case, this court suggested that, due to the intervening amended judgment of conviction, the petition herein was not a second or successive petition notwithstanding the prior federal habeas proceeding (i.e., 2:05-cv-01156-JCM-PAL). ECF No. 8 at 2 (citing Magwood v. Patterson, 561 U.S. 320, 341-42 (2010), and Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012)). The court overlooked, however, that Zacarias-Lopez had filed an additional federal habeas petition in this court in 2015.1 See Lopez v. Williams, 2:15-cv- 00042-APG-GWF. In that case, the court dismissed the petition with prejudice as untimely. Id., ECF No. 8. The Ninth Circuit Court of Appeals subsequently denied Zacarias-Lopez’s request for a certificate of appealability as to that decision. Id., ECF No. 12.

Under 28 U.S.C. § 2244(3)(A), a petitioner may not file a second or successive habeas petition without first obtaining from the appropriate court of appeals an order authorizing the district court to consider the petition. 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(b). McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d

1 In both his initial petition and his amended petition in this case, Zacarias-Lopez indicated that he had filed a prior habeas action in this court, but he left blank the space on the court’s habeas form asking for the prior case number. ECF No. 9 at 2 and ECF No. 12 at 2. In screening the petitions, the court mistakenly assumed case number 2:05-cv-01156-JCM-PAL was the only prior case. 1049, 1053 (9th Cir. 2005). Because Zacarias-Lopez has not secured an order from the court of appeals authorizing this action as required by § 2244(b)(3), this court is without jurisdiction to consider his petition in this case. See Burton v. Stewart, 549 U.S. 147, 153 (2007). IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 17) is

GRANTED. This case is DISMISSED for lack of jurisdiction. The Clerk shall enter judgment accordingly and close this case. IT IS FURTHER ORDERED that a certificate of appealability is DENIED as reasonable jurists would not find dismissal for lack of jurisdiction to be debatable or wrong. IT IS FURTHER ORDERED that respondents’ motion for a seven-day extension of time to respond to petition (ECF No. 16) is GRANTED nunc pro tunc as of October 16, 2020. IT IS FURTHER ORDERED that petitioner’s motion for a 60-day extension of time to file a response to the motion to dismiss (ECF No. 23) is GRANTED nunc pro tunc as of December 21, 2020. Dated: April 7, 2021

_________________________________ U.S. District Judge Kent J. Dawson