United States District Court, D. Arizona
A. Teilborg Senior United States District Judge.
December 21, 2016, this Court issued the following Order:
Pending before the Court is the Report and Recommendation
(“R&R”) from the Magistrate Judge
recommending that this case be dismissed for lack of
jurisdiction. (Doc. 13). The R&R makes this
recommendation because the Petition in this case is a second
or successive petition filed without permission from the
Court of Appeals to file another case. (Doc. 13 at 3).
Prior to filing the Petition in this case, Petitioner filed a
request for leave to file a second or successive petition
with the Ninth Circuit Court of Appeals. (Doc. 13 at 3). The
Ninth Circuit Court of Appeals appointed Petitioner counsel
for that case. His counsel in that case has now filed a
motion to be appointed as his counsel in this case and in any
ancillary state court proceedings. (Doc. 14).
In the motion for appointment, counsel correctly recounts
that one factor the court should consider in deciding whether
to appoint counsel is Petitioner's likelihood of success
on the merits. (Doc. 14 at 2). Counsel then argues that
Petitioner's Miller claim is likely to succeed
on the merits. (Doc. 14 at 2-3). However, counsel makes no
argument that this Court will ever reach the Miller
claim in this case. In other words, counsel makes no argument
that would overcome the R&R's conclusion that this
Court is without jurisdiction to hear this case. Therefore,
without expressing any opinion on the substance of
Petitioner's Miller claim; the Court sees no
likelihood of success in this case.
on the foregoing,
IT IS ORDERED that the motion for appointment of counsel
(Doc. 14) is denied in full.
IT IS FURTHER ORDERED that the motion for status conference
(Doc. 16) is denied.
IT IS FINALY ORDERED that the motion for extension of time
(Doc. 15) is granted such that Petitioner has until January
6, 2017, to file his objections to the R&R (Doc. 13).
date, Petitioner has not filed any objections to the R&R.
Accordingly, the R&R will be accepted and
it is unclear to the Court whether Petitioner received a copy
of the December 21, 2016 Order. Specifically, when counsel
filed the motion for appointment, he added himself to the
docket as Petitioner's counsel; rather than as a Movant,
thereby removing Petitioner himself from this Court's
mailing list for the distribution of Orders. The Court
assumes counsel mailed a copy of the Order to Petitioner, as
counsel was intercepting Petitioner's mail from the
Court; but the Court cannot be sure this occurred. Therefore,
to the extent Petitioner did not file objections solely
because he never received this Court's December 21, 2016
Order, if Petitioner files a timely Rule 59 motion to set
aside the judgment, and contemporaneously files his
objections to the R&R, the Court will re-open this case
for purposes of considering the objections and deem them to
be timely filed.
IT IS ORDERED that the Report and Recommendation (Doc. 13) is
accepted and adopted. The Petition in this case is dismissed,
without prejudice, and the Clerk of the Court shall enter
FURTHER ORDERED that pursuant to Rule 11 of the Rules
Governing Section 2254 Cases, in the event Petitioner files
an appeal, the Court denies issuance of a certificate of
appealability because dismissal of the petition is based on a
plain procedural bar and jurists of reason would not find