Piceno v. Garrett

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

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

Petitioner, v. ORDER TIM GARRETT, et. al,

Respondents.

Petitioner Joe Piceno, a Nevada prisoner, has submitted a pleading styled as a “Rule 60(b) subsequent petition” and a motion for appointment of counsel, with which he is seeking relief from a state court judgment of conviction entered in 1997. (ECF No. 1.) The Court notes that Piceno has had two prior habeas corpus proceedings in this Court with respect to the same state court judgment. The first was dismissed as untimely. Piceno v. LeGrand, et. al., Case No. 3:11-cv-00588-RCJ-WGC (ECF No. 9). The second was dismissed as a successive petition. Piceno v. LeGrand, et. al., Case No. 3:14-cv- 00545-RCJ-WGC (ECF No. 16). In both cases, the Ninth Circuit Court of Appeals denied Piceno’s request for a certificate of appealability.

Though identified as a pleading seeking relief under Rule 60(b) of the Federal Rules of Civil Procedure, Piceno’s current filing asserts a “federal basis for relief from a state court's judgment of conviction” and is, therefore, subject to the same requirements as a habeas corpus application under 28 U.S.C. § 2254. See Gonzalez v. Crosby, 545

26 U.S. 524, 530-31 (2005). Viewed as such, the pleading is a successive petition, which requires Piceno to seek and obtain leave of the Ninth Circuit before pursuing relief in this Court. See id. at 531-32 (citing 28 U.S.C. § 2244(b)(3)).

Piceno has not secured an order from the Ninth Circuit authorizing this action as required by § 2244(b)(3). Therefore, this Court is without jurisdiction to consider the petition submitted herein. See Burton v. Stewart, 549 U.S. 147, 153 (2007).

It is therefore ordered that this case is dismissed for lack of jurisdiction. The Clerk of Court shall separately file the petition and motion for appointment of counsel (currently docketed as ECF Nos. 1-1 and 1-2). The Clerk of Court shall also enter judgment against Piceno and close this case.

It is further ordered that Piceno’s motion for appointment of counsel is denied as } moot.

It is further ordered that a certificate of appealability is denied. DATED THIS 7" Day of April 2021.

_— A Le? _ MIRANDA M. DU

CHIEF UNITED STATES DISTRICT JUDGE