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Crisman v. State

United States District Court, D. Nevada

July 23, 2015

BRIAN CRISMAN, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

ORDER

Gloria M. Navarro, Chief Judge United States District Court

This action, filed by a Nevada state prison proceeding pro se, was opened by the Clerk of Court as a habeas corpus action pursuant to 28 U.S.C. § 2254.

The Court has conducted a preliminary review of the documents initiating this action pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that “he is in custody in violation of the Constitution . . . .” 28 U.S.C. § 2254(a). Unless an issue of federal constitutional or statutory law is implicated by the facts presented, the claim is not cognizable under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68 (1991). A state law issue cannot be mutated into one of federal constitutional law merely by invoking the specter of a due process violation. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881 (1997). Petitioner must demonstrate the existence of federal constitutional law which establishes the right in question. The Court must dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Petitioner initiated this action by filing a “motion [for] modification of sentence.” (ECF No. 1). The motion is captioned for a Nevada state court. (ECF No. 1, at p. 1). Petitioner does not allege violation of a federal constitutional right. Rather, petitioner has submitted a motion for modification of his sentence pursuant to Nevada state law, apparently intended for review by a Nevada state court. There is no actual petition and petitioner’s motion for modification does not set forth a viable claim for federal habeas corpus relief As such, this action must be dismissed. See Rule 4, Rules Governing Section 2254 Cases. The Court further notes that petitioner has been afforded an opportunity to submit a proper petition, as the Clerk of Court sent petitioner a blank habeas corpus form and instructions on October 15, 2014. Finally, the Court notes that petitioner has since filed a habeas corpus petition in a new action, opened as case number 3:14-cv-636-HDM-WGC. It is therefore appropriate to dismiss this action for lack of a proper petition and failure to state a cognizable claim for federal habeas relief

IT IS THEREFORE ORDERED that this action is DISMISSED WITH PREJUDICE for lack of a proper petition and failure to state a cognizable claim for federal habeas relief

IT IS FURTHER ORDERED that all pending motions in this action are DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Reasonable jurists would not find the dismissal of the improperly-commenced action without prejudice to be debatable or wrong.

IT IS FURTHER ORDERED that the Clerk of Courtshall enter judgment accordingly.


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