Filed: Jan. 10, 2019
Latest Update: Jan. 10, 2019
Summary: ORDER HOWARD D. McKIBBEN , District Judge . Petitioner Robert L. Stockmeier has submitted a 2254 petition for a writ of habeas corpus (ECF No. 1-1). The court has reviewed his petition, and it shall be dismissed as second and successive. 28 U.S.C. 2244(3)(A) provides: "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider t
Summary: ORDER HOWARD D. McKIBBEN , District Judge . Petitioner Robert L. Stockmeier has submitted a 2254 petition for a writ of habeas corpus (ECF No. 1-1). The court has reviewed his petition, and it shall be dismissed as second and successive. 28 U.S.C. 2244(3)(A) provides: "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider th..
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ORDER
HOWARD D. McKIBBEN, District Judge.
Petitioner Robert L. Stockmeier has submitted a § 2254 petition for a writ of habeas corpus (ECF No. 1-1). The court has reviewed his petition, and it shall be dismissed as second and successive.
28 U.S.C. § 2244(3)(A) provides: "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 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. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).
Petitioner indicates on the face of his petition that he seeks to challenge his 1990 state judgment of conviction in case no. 19470 (ECF No. 1-1, p. 2). He also states that he previously challenged the same state judgment of conviction in federal habeas matter 3:94-cv-00365-HDM-RAM. On June 10, 1996, this court dismissed that petition as procedurally defaulted (see 3:94-cv-00365-HDM-RAM, ECF No. 48). This court later denied Stockmeier's 2008 motion for relief from judgment, and the Ninth Circuit Court of Appeals denied a certificate of appealability (ECF Nos. 48, 56).
This petition, therefore, is a second or successive habeas corpus petition. Henderson, 396 F.3d at 1053. Petitioner was required to obtain authorization from the Ninth Circuit Court of Appeals before he could proceed. 28 U.S.C. § 2244(b)(3). Petitioner has not indicated that he has received such authorization from the court of appeals.
Thus, this petition shall be dismissed with prejudice. Reasonable jurists would not find this conclusion to be debatable or wrong, and the court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the petition is DISMISSED as set forth in this order.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall add Aaron D. Ford, Nevada Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that the Clerk shall electronically serve the petition, along with a copy of this order, on respondents. No response by respondents is necessary.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case.
