Benson v. Hutchings

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA Fredrick J. Benson, Case No.: 2:21-cv-01850-APG-BNW 4 Petitioner, Order to Show Cause v. [ECF No. 1-1] William Hutchings, 7 Respondents.

8 This is a habeas corpus action under 28 U.S.C. § 2254. Petitioner Fredrick Benson has paid the filing fee. I have reviewed the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Benson needs to show cause why I should not dismiss this action as an unauthorized second or successive petition.

12 Benson is challenging his custody under a judgment of conviction of the Eighth Judicial District Court of the State of Nevada, Case No. 00C168372-3. Benson challenged his custody under the same judgment of conviction in Benson v. Budge, Case No. 3:05-cv-00464-GMN- VPC, 2015 WL 1442293 (D. Nev. Mar. 30, 2015). The court denied that petition on its merits, and the court of appeals denied a certificate of appealability. Consequently, this petition is a second or successive petition under 28 U.S.C. § 2244(b). Benson must first obtain authorization from the Ninth Circuit before this court can consider his petition. 28 U.S.C. § 2244(b)(3).

19 Nothing in the documents that Benson has filed indicates that he has received such authorization.

20 I have reviewed the on-line docket of the Ninth Circuit. In 2020, Benson applied for authorization to file a second or successive petition, but the Ninth Circuit denied his application.

22 Benson v. Dzurenda, Case No. 20-72548. It appears that Benson has not received authorization, and he will need to show cause why I should not dismiss this action. ] Benson has submitted a motion for appointment of counsel. I deny this motion because it 2\| appears that the Ninth Circuit has not yet authorized Benson to proceed with this action. If Benson can show authorization, then he may renew this motion.

4 I THEREFORE ORDER the clerk of the court to file the petition for a writ of habeas corpus and the motion for appointment of counsel, currently in the docket at ECF No. 1-1 and 1- 6]| 2, respectively.

7 I FURTHER ORDER that the motion for appointment of counsel is DENIED.

8 I FURTHER ORDER that Benson will have until January 31, 2022 to show cause in 9] writing why I should not dismiss this action as an unauthorized second or successive petition.

10]| Failure to comply with this order will result in the dismissal of this action.

11 I FURTHER ORDER the clerk to add Aaron Ford, Attorney General for the State of 12|| Nevada, as counsel for the respondents.

13 I FURTHER ORDER that the respondents’ counsel must enter a notice of appearance by 14|| December 31, 2021, but no further response will be required from the respondents until further 15]| order of the court.

16 I FURTHER ORDER the clerk to provide copies of this order and all prior filings to the 17|| Attorney General in a manner consistent with the clerk’s current practice, such as regeneration of 18]| notices of electronic filing.

19 DATED this 8th day of December, 2021.

ANDREWP.GORDON.

UNITED STATES DISTRICT JUDGE