Rowbottom v. Baker

[7] 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA [10] 11 MATTHEW ROWBOTTOM, Case No. 3:20-cv-00486-RCJ-CLB 12 Petitioner, ORDER 13 v. 14 RENEE BAKER, et al., 15 Respondents. [16] 17 I. Introduction 18 This is a habeas corpus action under 28 U.S.C. § 2254 . The court has reviewed the 19 petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District 20 Courts. Petitioner Matthew Rowbottom needs to show cause why the court should not dismiss 21 this action as an unauthorized second or successive petition under 28 U.S.C. § 2244 (b). 22 II. Procedural History 23 Pursuant to a jury verdict, the Second Judicial District Court of the State of Nevada, Case 24 No. 87-1448, convicted Rowbottom of first-degree murder with the use of a deadly weapon and 25 sentenced him to death. On appeal, the Nevada Supreme Court reversed and remanded for a new 26 trial. Rowbottom v. State, 779 P.2d 934 (Nev. 1989). During the second trial, Rowbottom agreed 27 to plead guilty to first-degree murder with the use of a deadly weapon; in exchange, the 28 prosecution agreed not to seek the death penalty. The state district court entered its judgment of 1 conviction on November 16, 1990. See Rowbottom v. State, 466 P.3d 944 , 2020 WL 4035553 , at 2 *1 (Nev. Jul. 16, 2020) (table disposition). 3 The court takes judicial notice of Rowbottom v. McDaniel, Case No. CV-N-99-003424 ECR (PHA).1 On June 20, 1999, Rowbottom dispatched to this court a habeas corpus petition 5 under 28 U.S.C. § 2254 . The petition challenged Rowbottom's custody under the same judgment 6 of conviction that he challenges now. On October 14, 1999, the court dismissed Rowbottom's 7 petition. The court found that one claim was a claim of error in the state post-conviction 8 proceedings, and such a claim is not addressable in federal habeas corpus. See Franzen v. 9 Brinkman, 877 F.2d 26, 26 (9th Cir. 1989). The court found that a claim that Rowbottom's trial 10 counsel failed to inform the trial court about Rowbottom's right to appeal also was not 11 addressable in federal habeas corpus. The court found that the remaining claims were 12 procedurally defaulted. Both this court and the United States Court of Appeals for the Ninth 13 Circuit denied a certificate of appealability. 14 III. Legal Standard 15 The Antiterrorism and Effective Death Penalty Act (AEDPA) restricts Rowbottom's 16 ability to file a second or successive petition. A claim raised in a second or successive petition 17 must satisfy one of two conditions. First, the claim must rely on a new rule of constitutional law, 18 made retroactive to cases on collateral review by the Supreme Court of the United States. 28 19 U.S.C. § 2244 (b)(2)(A). Second, alternatively, the petitioner could not have discovered the 20 factual predicate for the claim previously through the use of due diligence and the facts 21 underlying the claim, if proven and considered with all the evidence, would be sufficient to 22 establish by clear and convincing evidence that the petitioner is actually innocent but for the 23 constitutional error. 28 U.S.C. § 2244 (b)(2)(B). 24 Before this court can consider a second or successive petition, the petitioner must apply in 25 the Ninth Circuit to authorize this court to consider the petition. 28 U.S.C. § 2244 (b)(3). [27] 1 The court uses its old style of numbering this case because it never was incorporated into the CM/ECF docketing 28 system. 1 "[A] denial on grounds of procedural default constitutes a disposition on the merits and 2 | thus renders a subsequent § 2254 petition . . . ‘second or successive’ for purposes of the AEDPA." 3 | Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (citation and quotation omitted). 4 | IV. _ Discussion 5 The current petition is a second or successive habeas corpus petition. Rowbottom 6 | challenged his custody pursuant to the same judgment of conviction in Rowbottom v. McDaniel, 7 | Case No. CV-N-99-00342-ECR (PHA). The court dismissed the petition because the grounds 8 | that were addressable in federal habeas corpus were procedurally defaulted, and a dismissal due 9 | to procedural default is a decision on the merits for the purposes of determining whether a 10 | subsequently filed habeas corpus petition is a second or successive petition for the purposes of 11 § 2244(b). Henderson, 396 F.3d at 1053 . Rowbottom thus needs authorization from the Ninth 12 | Circuit before this court may consider his petition. 28 U.S.C. § 2244 (b)(2). 13 It does not appear that Rowbottom has obtained that authorization. The Ninth Circuit has 14 | not transferred the case to this court with an order authorizing this court to consider the petition. 15 | Rowbottom has not attached an authorization order to his petition. The court has searched the on16 | line docket of the Ninth Circuit, and the court has not found any application for authorization by 17 | Rowbottom. Without authorization, the court cannot consider Rowbottom's petition. 18 | Consequently, Rowbottom must show cause why the court should not dismiss this action. 19 | V. Conclusion 20 IT THEREFORE IS ORDERED that the clerk of the court shall file the petition for a writ 21 | of habeas corpus pursuant to 28 U.S.C. § 2254 . 22 IT FURTHER IS ORDERED that petitioner will have thirty (30) days from the date of 23 || entry of this order to show cause why this action should not be dismissed as a second or 24 | successive petition. Failure to comply will result in the dismissal of this action. 25 DATED: January 14, 2022. [26] BERT C/HONES 27 United Statés/District Judge