1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 JOHN ROSKY, Case No. 3:19-cv-00130-HDM-CBC 12 Petitioner, ORDER 13 v. 14 RENEE BAKER, et al., 15 Respondents. 16 17 The court directed petitioner to show cause why this action should not be dismissed as a 18 successive petition under

(b) or as an untimely petition under 28 U.S.C. 19 § 2244(d). Petitioner has filed a response. The court finds that this is a successive petition. 20 Petitioner repeats his argument that this is a petition under

. The court 21 rejects that argument for the same reasons that the court gave in its earlier orders. ECF No. 3, 9. 22 Petitioner states that he filed a petition with the Nevada Supreme Court under that court's 23 original jurisdiction. Petitioner also states that the Nevada Supreme Court was capable of 24 modifying the judgment of conviction. Petitioner appears to try to take advantage of Magwood v. 25 Patterson,

(2010), which held that a federal habeas corpus petition is not a second or 26 successive petition within the meaning of

(d) if the state court entered a new 27 judgment of conviction after the conclusion of the earlier federal habeas corpus petition. See also 28 Wentzell v. Neven,

(9th Cir. 2012). However, as petitioner himself notes, the 1 | Nevada Supreme Court denied his petition and did not modify his judgment. ECF No. 12, at 3. 2 | No intervening judgment of conviction exists, and this action is second or successive to Rosky v. 3 | Byrne, Case No. 3:16-cv-00156-MMD-VPC. 4 Petitioner asks the court for a certificate of appealability. Under the circumstances, the 5 | court will refer the action the court of appeals under Circuit Rule 22-3(a). 6 Because the court has found that this action is a second or successive habeas corpus 7 || petition, the court will not address whether the action is untimely. 8 IT THEREFORE IS ORDERED that, pursuant to Circuit Rule 22-3(a), the clerk of the 9 | court shall refer this action to the United States Court of Appeals for the Ninth Circuit. 10 IT FURTHER IS ORDERED that the clerk of the court shall administratively close this 11 action. 12 DATED: October 9th, 2019. butanol? 5 HOWARD D. MCKIBBEN 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28