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Brothers v. Neven

United States District Court, D. Nevada

March 18, 2014

DWIGHT NEVEN, et al., Respondents.


JENNIFER A. DORSEY, District Judge.

This action is a pro se petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 by a Nevada state prisoner. Before the Court is Respondents' motion to dismiss. Doc. 9.

I. Procedural History

Petitioner was incarcerated after a judgment of conviction filed in Eighth Judicial District Court Case No. C111628. He was convicted of multiple crimes and is serving consecutive life sentences without the possibility of parole for murder with the use of a deadly weapon. Petitioner challenged his conviction in Case No. C111628 by filing a § 2254 petition in this Court, which was filed at Case No. 3:02-cv-00422-LRH-RAM. On December 3, 2004, this Court entered an order dismissing Grounds 4 and 5 of the petition as procedurally barred and denying the remaining grounds of the petition for lacking merit. Exhibit A[1]; Doc. 38 in Case No. 3:02-cv-00422-LRH-RAM. Judgment was entered on December 6, 2004. Doc. 39 in Case No. 3:02-cv-00422-LRH-RAM. In 2006, the Ninth Circuit Court of Appeals affirmed this Court's decision to dismiss claims and deny the petition. Exhibit B; Doc. 56 in Case No. 3:02-cv-00422-LRH-RAM.

Nearly six years later, petitioner filed a post-conviction habeas petition in the state court. Exhibit C. He alleged that his confinement was unlawful under state law because of the administration of his sentences since 1994. Id. He contended that he was placed on the "wrong sentence" therefore extending his detention - ignoring the fact that his sentences include life sentences without the possibility of parole. Id. Petitioner claimed that the Nevada Department of Corrections ignored state law by failing to give him parole hearings on his non-life sentences under state law from as far back as 2003. Exhibit C at p. 5. Petitioner's claims were raised and argued under state law. Id.

An answer to the state petition was filed in March 2012. Exhibit E. At the time, it was suggested by the Department of Corrections that petitioner's sentence would be reviewed, but the Department subsequently advised that Nevada law had been followed and no changes to petitioner's sentence were required. Exhibit F. The state court denied the petition, finding that Nevada law was not violated and that any error was harmless because petitioner had no expiration date from prison due to his multiple sentences of life without the possibility of parole. Exhibit H.

Petitioner appealed the denial of relief to the Nevada Supreme Court. Exhibit I. The Nevada Supreme Court denied relief, finding that Nevada law required that the longest sentence (i.e. life) was the controlling sentence for purposes of parole review, Exhibit J, and reviewing petitioner for institutional parole is a waste of resources because it could not lead to his release or eventual release because he is serving sentences of life without the possibility of parole.

Petitioner initiated the above-captioned habeas petition in this Court. Pursuant to the "mailbox rule, " federal courts deem the filing date of a document as the date that it was given to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988). Petitioner did not indicate the date on which he gave his petition to prison officials for mailing, Doc. 7 at p. 1, item 5, [2] but the federal petition was signed January 17, 2013. Doc. 7 at p. 20. Therefore, the earliest date on which the federal petition could have been mailed and deemed filed is January 17, 2013.

On June 13, 2013, this Court directed the Clerk to file and serve the petition on respondents. Doc. 6. The petition was filed by the Clerk on June 13, 2013. Doc. 7. Respondents were granted 45 days within which to file a response to the petition. Doc. 6. This petition appears to be the same petition filed in state court, except that petitioner has added one sentence asserting that "his Eighth and Fourteenth Amendment rights to prohibition against cruel and unusual punishment/due process/equal protection under the law has been violated based on these facts." Doc. 7 at p. 4.

Respondents now move to dismiss the current habeas petition. Doc. 9. Petitioner filed an opposition to the motion to dismiss and therein makes his second request for the appointment of counsel in this case. Doc. 12 at pp. 1-2. For the reasons below, the Court grants the motion to dismiss, denies the request for counsel, and dismisses this petition with prejudice.

II. Discussion

A. Petitioner's Renewed Request for Appointment of Counsel

Before reaching the arguments within respondents' motion to dismiss, the Court addresses petitioner's renewed request for the appointment of counsel contained in his opposition to the motion to dismiss. Doc. 12 at pp. 1-2. In the order filed June 13, 2013, petitioner's first motion for the appointment of counsel was denied on the basis that the petition was well-written and sufficiently clear in presenting the issues that petitioner sought to bring. (Doc. 6). The Court also noted that the issues in this case are not complex. ( Id. ).

18 U.S.C. § 3006(a)(2)(B) gives the district court discretion to appoint counsel when it determines that the "interests of justice" require representation. There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). Nothing in petitioner's renewed request for counsel causes this Court to depart from its conclusion that the appointment of counsel is unwarranted. ...

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