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Carmichael v. Gentry

United States District Court, D. Nevada

February 7, 2017

RICHARD LEE CARMICHAEL, Petitioner,
v.
JO GENTRY, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II United States District Judge.

         This habeas action by a state inmate in custody in Nevada comes before the Court for initial review as well as on petitioner's motion (ECF No. 3) for appointment of counsel, motion (ECF No. 4) for leave to submit a memorandum in support of petition, and motion (ECF No. 6) to expedite response. The filing fee has been paid.

         Background

         Petitioner Richard Lee Carmichael challenges a prison disciplinary conviction that he alleges resulted in, inter alia, a loss of six months of statutory good time sentence credit, prolonging the duration of his confinement.

         While the record does not contain copies of all potentially relevant documents, petitioner's papers and the available online docket records of the state appellate courts reflect the following procedural history.[1]

         Petitioner was found guilty at a prison disciplinary hearing on September 22, 2013, of unauthorized use of equipment or mail and possession or sale of intoxicants. On December 11, 2013, he received a partial denial of his first level administrative appeal. On April 7, 2014, he received a denial of his second level administrative appeal.[2]

         After 37 days had passed, on May 14, 2014, petitioner filed a state habeas petition in state district court. District court and thereafter appellate proceedings on the petition were pending continuously through to the June 16, 2015, issuance of the remittitur by the Supreme Court of Nevada, in No. 67223 in that court.[3]

         At some point during the period from May 16, 2016, through May 19, 2016, petitioner delivered the federal petition in this matter to the prison internal legal mailing system for mailing to the Clerk of this Court. Petitioner did not state the date of mailing in response to the inquiry on the first page of the petition form. The petition is dated May 16, 2016, on the signature page. The mailing envelope is postmarked Thursday, May 19, 2016.[4]

         The federal petition accordingly was constructively filed from 334 to 337 days after the issuance of the remittitur, including the intermediate February 29, 2016.

         The federal petition did not contain extensive specific factual allegations in support of the fifteen grounds presented. Petitioner indicated that further grounds or amended grounds would be forthcoming in an amended pleading and/or supporting memorandum.[5] He further asserted:

Petitioner is nearing the deadline under AEDPA. His delay has been with cause, as he has significant medical issues and had put the litigation in the care of a law clerk - it turned out no work was ever done on it .....

ECF No. 1-1, at 8.

         On or about June 4, 2016, petitioner mailed for filing a motion for appointment of counsel. Petitioner detailed therein multiple health conditions - including advanced degenerative disc disease, carpal tunnel syndrome, arthritis, and advanced chronic prostate disease - which he maintains make it difficult to prepare and file papers without aggravating the conditions and causing significant pain. He attached a 38-page handwritten supporting brief filed in the state district court alleging eleven grounds for relief in detail.

         On or about September 13, 2016, petitioner filed a motion for leave to submit a memorandum in support of the petition “to be added to his petition for [a] writ of habeas corpus.”[6] The 51-page handwritten supporting memorandum ...


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