1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 FREDYS A. MARTINEZ, Case No. 3:19-cv-00511-MMD-WGC

7 Petitioner, ORDER v. 8 ISIDRO VACA, et al., 9 Respondents. 10 11 This is a habeas corpus proceeding under

brought by Petitioner 12 Fredys A. Martinez, a person incarcerated in Nevada who is proceeding pro se. Before 13 the Court is Martinez’s Applications to Proceed In Forma Pauperis (ECF Nos. 1, 9), 14 Motion for Appointment of Counsel (ECF No. 8), and Amended Petition for Writ of Habeas 15 Corpus (ECF No. 7). Following review under the Rules Governing Section 2254 Cases,1 16 the Court finds that the amended petition is second or successive and therefore must be 17 dismissed for lack of jurisdiction. As the Court lacks jurisdiction over the amended petition, 18 all other pending motions will accordingly be denied. 19 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition 20 and order a response unless it “plainly appears” that the petitioner is not entitled to relief. 21 See Valdez v. Montgomery,

(9th Cir. 2019). This rule allows courts to 22 screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 23 incredible, or false. See Hendricks v. Vasquez,

(9th Cir. 1990). The 24 court may also dismiss claims at screening for procedural defects. See Boyd v. 25 Thompson,

(9th Cir. 1998).

26 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the 27 Rules Governing Section 2254 Cases in the United States District Courts. 1 Martinez initiated this case on August 19, 2019, by filing a document he called a 2 “Motion of Appeal Actually Innocent” (ECF No. 1-1). The motion stated that he is “actually 3 innocent of the crime” and made an unspecific request for a “document to enable him to 4 better prepare a petition for writ NRS 34.726.” (Id.) The Court entered an order requiring 5 Martinez to file a proper habeas petition and deferred consideration of his request for in 6 forma pauperis (“IFP”) status until such petition was filed. (ECF No. 3.) The Court noted 7 that, “because Martinez previously filed a federal habeas petition, which was dismissed 8 as untimely, his current ‘motion’ may be an attempt to file a second or successive petition.” 9 (Id.) See also Martinez v. Palmer, Case No. 3:10-cv-00777-LRH-VPC (D. Nev. Filed Dec. 10 14, 2010) (“2010 Case”). 11 Martinez filed an Amended Petition for Writ of Habeas Corpus (ECF No. 7) on 12 September 25, 2019. He challenges a May 2007 judgment of conviction entered by the 13 Eighth Judicial District Court for Clark County. See State of Nevada v. Martinez, Case 14 No. 06C226586.2 Martinez acknowledges that he previously challenged this same 15 judgment of conviction in federal court. (ECF No. 7 at 4.) The Federal Public Defender’s 16 Office was appointed to represent Martinez in the 2010 Case. On February 25, 2013, the 17 court issued an order in the 2010 Case granting the respondents’ motion to dismiss, 18 dismissing the petition with prejudice as untimely, and entering judgment accordingly. 19 However, the court granted a certificate of appealability on the issue of equitable tolling. 20 Martinez appealed, and the Ninth Circuit affirmed the district court’s order dismissing the 21 petition. See Martinez v. Palmer, Case No. 13-15537 (9th Cir. Apr. 10, 2015). 22 Because the prior federal petition was dismissed with prejudice, Martinez attacks 23 the same judgment of conviction, and the claims Martinez raises here are based on facts 24 that had occurred by the time of the prior federal petition, his amended petition is second

25 2This Court takes judicial notice of the proceedings in Martinez’s criminal case in 26 the Eighth Judicial District Court, which shows that no intervening judgment of conviction has been entered. The state court’s docket records may be accessed by the public online 27 at: https://www.clarkcountycourts.us/Anonymous/default.aspx. 1 or successive. See Brown v. Muniz,

(9th Cir. 2018), cert. denied sub 2 nom. Brown v. Hatton,

(2019) (“It is now understood that a federal habeas 3 petition is second or successive if the facts underlying the claim occurred by the time of 4 the initial petition, . . . and if the petition challenges the same state court judgment as the 5 initial petition. . . .”). 6 Martinez also alleges he is “actually innocent” pursuant to

(d)(1). 7 “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass” 8 after the statute of limitations has expired. McQuiggin v. Perkins,

, 386 9 (2013) (citing Schlup v. Delo,

(1995); House v. Bell,

(2006)). 10 “To be credible, such a claim requires petitioner to support his allegations of constitutional 11 error with new reliable evidence—whether it be exculpatory scientific evidence, 12 trustworthy eyewitness accounts, or critical physical evidence—that was not presented at 13 trial.” Schlup,

. The Supreme Court has cautioned that “tenable actual- 14 innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement 15 unless he persuades the district court that, in light of the new evidence, no juror, acting 16 reasonably, would have voted to find him guilty beyond a reasonable doubt.’” McQuiggin, 17

(quoting Schlup,

; citing House,

18 (emphasizing that the Schlup standard is “demanding” and seldom met)). Here, the 19 amended petition does not allege that new reliable evidence supports Martinez’s 20 innocence. Rather, the amended petition merely repeats allegations and claims from the 21 2010 Case regarding ineffective assistance of counsel and inadequacy of evidence at 22 trial. Martinez has failed to demonstrate that the amended petition is not successive or 23 that he has a credible claim of actual innocence. 24 Under

(b)(3), before a second or successive petition is filed in the 25 federal district court, a petitioner must move in the court of appeals for an order 26 authorizing the district court to consider the petition. A federal district court does not have 27 jurisdiction to entertain a successive petition absent such permission. See Brown, 889 1 F.3d at 667. Martinez does not indicate that he has received authorization from the Court 2 of Appeals to file this second or successive petition, nor do the records of the Court of 3 Appeals reflect that he has sought to obtain any such authorization. This second or 4 successive petition must therefore be dismissed for lack of jurisdiction. As the Court lacks 5 jurisdiction over the petition, all of Martinez’s other motions are hereby denied. 6 It is therefore ordered that this action is dismissed without prejudice for lack of 7 jurisdiction. 8 It is further ordered that Petitioner Fredys A. Martinez’s Applications to Proceed In 9 Forma Pauperis (ECF Nos. 1, 9), and Motion for Appointment of Counsel (ECF No. 8) are 10 denied. 11 It is further ordered that Martinez is denied a certificate of appealability, as jurists 12 of reason would not find the dismissal of the petition on jurisdictional grounds to be 13 debatable or wrong. 14 It is further ordered that, pursuant to Rule 4 of the Rules Governing Section 2254 15 Cases, the Clerk of Court will add Nevada Attorney General Aaron D. Ford as counsel for 16 Respondents and informally serve the Nevada Attorney General by directing a notice of 17 electronic filing of this order to his office. No response is required from Respondents other 18 than to respond to any orders of a reviewing court. 19 The Clerk of Court is further directed to enter final judgment accordingly, 20 dismissing this action without prejudice, and close this case. 21 DATED THIS 4th day of October 2019.

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23 MIRANDA M. DU 24 CHIEF UNITED STATES DISTRICT JUDGE 25 26 27