1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JOE PICENO, Case No. 3:21-cv-00156-MMD-CLB

7 Petitioner, v. ORDER 8

9 TIM GARRETT, et. al,

10 Respondents.

11 12 13 Petitioner Joe Piceno, a Nevada prisoner, has submitted a pleading styled as a 14 “Rule 60(b) subsequent petition” and a motion for appointment of counsel, with which he 15 is seeking relief from a state court judgment of conviction entered in 1997. (ECF No. 1.) 16 The Court notes that Piceno has had two prior habeas corpus proceedings in this Court 17 with respect to the same state court judgment. The first was dismissed as untimely. 18 Piceno v. LeGrand, et. al., Case No. 3:11-cv-00588-RCJ-WGC (ECF No. 9). The second 19 was dismissed as a successive petition. Piceno v. LeGrand, et. al., Case No. 3:14-cv- 20 00545-RCJ-WGC (ECF No. 16). In both cases, the Ninth Circuit Court of Appeals denied 21 Piceno’s request for a certificate of appealability. 22 Though identified as a pleading seeking relief under Rule 60(b) of the Federal 23 Rules of Civil Procedure, Piceno’s current filing asserts a “federal basis for relief from a 24 state court's judgment of conviction” and is, therefore, subject to the same requirements 25 as a habeas corpus application under

. See Gonzalez v. Crosby, 545

, 530-31 (2005). Viewed as such, the pleading is a successive petition, which 27 1 || requires Piceno to seek and obtain leave of the Ninth Circuit before pursuing relief in this 2 || Court. See

at 531-32 (citing

(b)(3)). 3 Piceno has not secured an order from the Ninth Circuit authorizing this action as 4 || required by § 2244(b)(3). Therefore, this Court is without jurisdiction to consider the 5 || petition submitted herein. See Burton v. Stewart,

(2007). 6 It is therefore ordered that this case is dismissed for lack of jurisdiction. The Clerk 7 || of Court shall separately file the petition and motion for appointment of counsel (currently 8 || docketed as ECF Nos. 1-1 and 1-2). The Clerk of Court shall also enter judgment against 9 || Piceno and close this case. 10 It is further ordered that Piceno’s motion for appointment of counsel is denied as 11 |} moot. 12 It is further ordered that a certificate of appealability is denied. 13 DATED THIS 7" Day of April 2021. 14 _— 15 A Le? _ 16 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28