2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JOE PICENO, Case No. 3:22-cv-00001-MMD-CLB

7 Plaintiff, ORDER v. 8 TIM GARRETT, 9 Defendant. 10 11 I. SUMMARY 12 This is a habeas corpus action under

. The Court ordered 13 petitioner Joe Piceno to pay the filing fee. (ECF No. 2.) The docket does not reflect 14 payment, but Piceno has paid the filing fee. The Court has reviewed the petition under 15 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. 16 The Court dismisses the action because Piceno has filed an unauthorized second or 17 successive petition. 18 II. BACKGROUND 19 The Court takes judicial notice of three cases that Piceno filed in this Court: Piceno 20 v. LeGrand, Case No. 3:11-cv-00588-RCJ-WGC (“Piceno I”), Piceno v. LeGrand, Case 21 No. 3:14-cv-00545-RCJ-WGC (“Piceno II”), and Piceno v. Garrett, Case No. 3:21-cv- 22 00156-MMD-CLB (“Piceno III”). The Court also takes judicial notice of a case that Piceno 23 filed in the United States Court of Appeals for the Ninth Circuit: Piceno v. Neven, Case 24 No. 20-72721 (“Piceno IV”). 25 In the Eighth Judicial District Court of the State of Nevada, Case No. 96C134909, 26 Piceno was convicted of sexual assault with the use of a deadly weapon and attempted 27 murder with the use of a deadly weapon. (ECF No. 1-1 at 3.) The Nevada Supreme Court 28 affirmed his judgment of conviction on August 8, 2000. See Piceno I, ECF No. 6 at 4. 2 became Piceno I. The Court dismissed the petition as untimely under 28 U.S.C. 3 § 2244(d)(1), and the Court denied a certificate of appealability. See Piceno I, ECF No. 4 9. Piceno appealed, and the Ninth Circuit denied a certificate of appealability. See Piceno 5 I, ECF No. 13. 6 On October 22, 2014, Piceno commenced Piceno II with another habeas corpus 7 petition. The Court noted that the dismissal of Piceno I as untimely constituted a 8 disposition on the merits, meaning that any subsequent petition is subject to the bar 9 against second or successive petitions of

(b). See Piceno II, ECF No. 10 16 at 2 (citing McNabb v. Yates,

(9th Cir. 2009)). The Court thus 11 dismissed Piceno II because Piceno had not received authorization from the Ninth Circuit 12 to file a second or successive petition under

(b)(3), and the Court denied 13 a certificate of appealability. See Piceno II, ECF No. 16 at 2. Piceno appealed, and the 14 Ninth Circuit denied a certificate of appealability. See Piceno II, ECF No. 20. 15 On September 11, 2020, Piceno filed in the Ninth Circuit an application for leave 16 to file a second or successive petition. See Piceno IV, ECF No. 1. The Ninth Circuit denied 17 the application on October 14, 2020. See Piceno IV, ECF No. 2. 18 On April 5, 2021, Piceno submitted a “Rule 60(b) subsequent petition” in this Court. 19 Piceno III, ECF No. 1-1. The Court ruled that the petition was a second or successive 20 petition, and the Court dismissed it because the Ninth Circuit had not authorized Piceno 21 to file a second or successive petition. See Piceno III, ECF No. 3. The Court also denied 22 a certificate of appealability. See

Piceno did not appeal. 23 III. DISCUSSION 24 Before filing a second or successive petition in this Court, Stone must first obtain 25 authorization from the Ninth Circuit. See

(b)(3). Piceno styles the current 26 petition as under

, but he still remains in custody under the same state- 27 court judgment of conviction that was the subject of Piceno I through Piceno IV. While § 28 2241 implements the general grant of habeas corpus authority provided in the 2 pursuant to the judgment of a state court. See Frantz v. Hazey,

(9th 3 Cir. 2008) (en banc). Piceno cannot escape the limitations of § 2254 by styling his petition 4 as under § 2241. 5 As with Piceno II and Piceno III, the current petition is a second or successive 6 petition. See

(b); see also McNabb,

. Piceno first 7 must obtain authorization from the Ninth Circuit before he can file a second or successive 8 petition. He has not obtained that authorization. The Court thus lacks jurisdiction to 9 consider his petition, and the Court dismisses the action. 10 Reasonable jurists would not find the Court's conclusion to be debatable or wrong, 11 and the Court will not issue a certificate of appealability. 12 IV. CONCLUSION 13 The Court notes that the parties made several arguments and cited to several 14 cases not discussed above. The Court has reviewed these arguments and cases and 15 determines that they do not warrant discussion as they do not affect the outcome of the 16 issues before the Court. 17 It is therefore ordered that the Clerk of Court file the petition for a writ of habeas 18 corpus. 19 It is further ordered that this action is dismissed for lack of jurisdiction. The Clerk 20 of Court is directed to enter judgment accordingly and to close this case. 21 It is further ordered that a certificate of appealability is denied. 22 It is further ordered that that the Clerk of Court add Aaron Ford, Attorney General 23 for the State of Nevada, as counsel for Respondents. 24 It is further ordered that the Clerk of Court provide copies of this order and all prior 25 filings to the Attorney General in a manner consistent with the Clerk of Court’s current 26 practice, such as regeneration of notices of electronic filing. 27 /// 28 /// 1 It is further ordered that no response by the Attorney General is necessary. 2 DATED THIS 8" Day of April 2022.

4 ee MIRANDA M. DU 5 CHIEF UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28