Stevens v. Lombardo

3 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA * * * THEODORE STEVENS, Case No. 3:25-cv-00281-MMD-CSD 7 Petitioner, ORDER v. JOE LOMBARDO, et al., Respondents.

11 Petitioner Theodore Stevens has submitted a pro se petition for writ of habeas corpus. (ECF No. 1-1 (“Petition”).) The Court has reviewed the Petition and dismisses it as second and successive. “Before a second or successive application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(3)(A). Where a petition has been dismissed with prejudice as untimely or because of procedural default, the dismissal constitutes a disposition on the merits and renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244. See McNabb v. Yates, 576 F.3d 19 1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).

21 Stevens indicates on the face of his Petition that he seeks to challenge his 2007 conviction of first-degree murder, arguing that his coerced confession violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966). (ECF No. 1-1 at 1.) He submits his Petition as a 28 U.S.C. § 2241 petition and argues that his sentence is illegal “for lack of jurisdiction” due to the alleged Miranda violation. The Court’s docket reflects that Stevens filed a previous federal petition in this Court in 2012. See Stevens v. Nev. Att’y Gen., Case No. 3:12-cv-00081-RCJ-WGC. In April 2015, the Court denied that petition on the merits in its entirety, and judgment was entered. See id. at ECF No. 49. The Court granted a certificate of appealability on the issue of whether the Miranda warnings given to Stevens before his statement to a particular investigator were effective. See id. The Ninth Circuit affirmed the denial of the petition. See id. at 55. The instant Petition, therefore, is properly construed as a second or successive § 2254 habeas corpus petition. See Henderson, 396 F.3d at 1053. Stevens takes pains to characterize the Petition as a challenge to jurisdiction under § 2241 in order to avoid the second and successive bar.

7 This attempt is unavailing because the gravamen of the current petition is that Stevens’ state conviction violated his constitutional rights. This falls squarely under § 2254(a).1 Stevens was required to obtain authorization from the Ninth Circuit before he could proceed. See 28 U.S.C. § 2244(b)(3). He cannot avoid that statutory requirement by titling his Petition as a § 2241 petition. The Court accordingly dismisses Stevens’ Petition with prejudice. And because reasonable jurists would not find this conclusion to be debatable or wrong, the Court declines to issue a certificate of appealability.

14 It is therefore ordered that the Clerk of Court detach and file the Petition (ECF No. 1-1).

16 It is further ordered that Stevens’ Petition (ECF No. 1-1) is dismissed with prejudice as second and successive.

18 It is further ordered that a certificate of appealability will not issue.

19 It is further ordered that Petitioner’s motion to the court to issue order (ECF No. 5), motion/request for stipulation (ECF No. 6), motion for order for respondents to produce oppositions (ECF No. 11), and motion for prosecution (ECF No. 12) are denied as moot.

22 /// /// /// /// 1“[A] district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”

28 28 U.S.C. § 2254(a).

1 The Clerk of Court is further directed to enter judgment accordingly and close this || case.

3 DATED THIS 27' Day of June 2025.

ASA 6 UNITED STATES DISTRICT JUDGE