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Means v. Legrand

United States District Court, D. Nevada

May 22, 2014

CLYDE MEANS, Petitioner,
v.
ROBERT LEGRAND, et al., Respondents.

ORDER

GLORIA M. NAVARRO, Chief District Judge.

This habeas action comes before the Court on petitioner's application (#1) to proceed in forma pauperis and for initial review of the petition under Rule 4 of the Rules Governing Section 2254 Cases (the "Habeas Rules"). On the showing made, the Court finds that petitioner is unable to pay the $5.00 filing fee, and the pauper application therefore will be granted.

Turning to initial review, the Court proceeds at this preliminary juncture on arguendo assumptions that: (a) petitioner is "in custody" for purposes of federal habeas jurisdiction by virtue of either being on parole or instead being subject under a special sentence of lifetime supervision to conditions sufficient to place him in custody;[1] (b) the petition is not successive to petitioner's prior untimely petition in No. 3:10-cv-00413-ECR-RAM because of the July 24, 2012, intervening amended judgment of conviction;[2] and (c) the petition is not untimely because it was filed within one year of the expiration of the ninety-day period for seeking certiorari review from the state supreme court's April 9, 2013, order on direct appeal from the amended judgment of conviction affirming the judgment. The Court makes no definitive holding on any of these points at this juncture.

Even with these arguendo assumptions, petitioner nonetheless still must name a proper respondent in the petition. Under Habeas Rule 2(a), "[i]f the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody." The papers presented reflect that petitioner no longer was in physical custody when he filed the petition. Warden Robert LeGrand therefore is not a proper respondent herein. The 1976 Advisory Committee Notes to Rule 2 state in pertinent part that if a petitioner is on parole, then the "named respondents shall be the particular... parole officer responsible for supervising the applicant, and the official in charge of the parole... agency...." A similar rule potentially may be applicable if petitioner instead is on lifetime supervision and is subject to comparable conditions placing him under the supervision of a particular officer and agency.[3]

Petitioner therefore must name a respondent that is proper based on his current custodial status before the action may proceed forward.

Petitioner further must amend the petition to: (a) state his claims with more factual specificity; (b) eliminate legal citation and prolix legal argument; and (c) assert only one constitutional violation per ground.

Habeas pleading is not notice pleading, and a habeas petitioner must state the specific facts that allegedly entitle him to habeas relief. See Mayle v. Felix, 545 U.S. 644, 655-56 (2005). Even under a more liberal notice pleading standard, conclusory assertions that constitute merely formulaic recitations of the elements of a cause of action and that are devoid of further factual enhancement do not state a claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 677-81 & 686 (2009). Accordingly, even under the more liberal notice pleading rules, the allegations of a pleading must "permit the court to infer more than the mere possibility" that a constitutional violation has occurred. 556 U.S. at 679. The stricter habeas pleading rules similarly require more than "mere conclusions of law, unsupported by any facts." Mayle, 545 U.S. at 655. A habeas petitioner instead must "state facts that point to a real possibility of constitutional error." Id.

Just as a pleading can say too little, a pleading also can say too much. As the Ninth Circuit has observed in an analogous context, there is no authority supporting the proposition that a pleading may be of unlimited length or opacity. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). Prolix and confusing filings impose unfair burdens on litigants and judges. Id.

Moreover, Instruction No. (C)(6) for the Court's required habeas petition form states, with the following emphasis: "YOU MAY ALLEGE THE VIOLATION OF ONLY ONE CONSTITUTIONAL RIGHT PER GROUND." Petitioner therefore may not combine multiple constitutional violations in a single ground. Petitioner thus also may not combine claims of trial court error in the same ground with claims of ineffective assistance of counsel. If the same factual allegations support more than one ground, petitioner may incorporate facts from one ground in another ground.

The present petition presents claims that, on the one hand, lack sufficient factual specificity but, also on the other hand, improperly contain extensive legal citation and prolix, often irrelevant discussion.

For example, Ground 1 alleges conclusorily only that counsel's "errors were numerous including that above [without there being any prior discussion alleging specific errors by counsel] and that the appeal to the state supreme court "was wholly deficient." The remainder of the ground consists of legal citation, not all of which even pertains to a claim of ineffective assistance of counsel. Neither the conclusory factual allegations nor the legal citation and argument states a claim upon which relief may be granted.

The petition further seeks to allege multiple different constitutional violations within single grounds.

For example, Ground 2 asserts constitutional violations alleging ineffective assistance of counsel, an alleged denial due process based upon alleged trial court error, and an alleged double jeopardy violation.

Petitioner instead must present only one constitutional violation per ground. If he again combines multiple violations within a single ground in an amended petition, the Court will disregard all alleged constitutional violations after the first constitutional violation alleged, for failure to comply with the instructions for the form and the Court's order.

IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis is GRANTED such that petitioner will not be required to pay the $5.00 filing fee.

IT FURTHER IS ORDERED that the Clerk of Court shall file the petition and that the petition is DISMISSED without prejudice, subject to leave to amend within thirty (30) days of entry of this order to correct the deficiencies in the petition, if possible.

IT FURTHER IS ORDERED that petitioner shall clearly title any amended petition filed in response to this order as an amended petition by placing the word "AMENDED" immediately above "Petition for a Writ of Habeas Corpus" on page 1 in the caption and shall place the docket number, 2:13-cv-01595-GMN-VCF, above the word "AMENDED." Under Local Rule LR 15-1, the amended petition must be complete in itself without reference to previously filed papers. Thus, the claims and allegations that are stated in the amended petition will be the only matters remaining before the Court. Any claims or allegations that are not re-alleged therein no longer will be before the Court.

If plaintiff does not timely file[4] an amended complaint, a final judgment dismissing this action will be entered without further advance notice. If the amended petition does not correct the deficiencies identified in this order and otherwise does not state a claim upon which relief may be granted, a final judgment dismissing this action will be entered. Moreover, if petitioner again combines multiple constitutional claims in a single ground, all constitutional claims after the first claim alleged in the ground will be disregarded.

The Clerk of Court shall SEND petitioner four copies of a noncapital ยง 2254 petition form together with one copy of the instructions for same along with a copy of the petition that he submitted.[5]


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