United States District Court, D. Nevada
GENE A. ALLEN, Petitioner,
JAMES G. COX, et al., Respondents.
C. JONES, UNITED STATES DISTRICT JUDGE
a habeas matter under 28 U.S.C. § 2254 in which
petitioner Gene A. Allen, represented by counsel, alleges
violations of his due process rights in his parole hearings
(ECF No. 44). Respondents have filed a motion to dismiss the
first-amended petition (ECF No. 55). Allen opposed (ECF No.
61), and respondents replied (ECF No. 63).
Procedural History and Background
September 18, 2002, Allen pleaded guilty to count 1: sexual
assault of a minor under sixteen years of age and count 2:
lewdness with a child under the age of fourteen (exhibit
The state district court sentenced him to 5-20 years on count
1 and 10 years to life on count 2, to run concurrently. Exh.
9. Judgment of conviction was filed on April 7, 2003. Exh.
to the instant petition, in an order dated April 28, 2011,
the Nevada Board of Parole Commissioners (BPC) denied
Allen's parole until July 1, 2014. Exh. 17. Subsequently,
in an order dated April 30, 2014, the BPC denied Allen's
parole until July 1, 2017. Exh. 18.
federal habeas matter was transferred to this court from the
United States District of Arizona (see ECF No. 17).
This court granted Allen's motion to appoint counsel, and
Allen filed a counseled, first-amended petition on March 11,
2016 (ECF No. 44). Respondents now argue that the petition is
unexhausted (ECF No. 55).
Legal Standards & Analysis: Exhaustion, Technical
Exhaustion and Procedural Default
argues that the BPC arbitrarily and unreasonably denied his
parole in 2014 in violation of his Fifth and Fourteenth
Amendment due process and equal protection rights (ECF No.
44, pp. 3-7). Allen alleges that the BPC used the same risk
assessment and guideline that it used in 2011 to re-assess
Allen in 2014, that the score was “based largely on
static factors that should not have changed since the 2011
evaluation, ” yet he was given a higher risk score in
2014 than he received in 2011. Id. at 4. He asserts
that the denial of parole in 2014 was arbitrary and violated
his rights to due process and a fair hearing. Id. at
federal court will not grant a state prisoner's petition
for habeas relief until the prisoner has exhausted his
available state remedies for all claims raised. Rose v.
Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A
petitioner must give the state courts a fair opportunity to
act on each of his claims before he presents those claims in
a federal habeas petition. O'Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999); see also Duncan
v. Henry, 513 U.S. 364, 365 (1995). A claim remains
unexhausted until the petitioner has given the highest
available state court the opportunity to consider the claim
through direct appeal or state collateral review proceedings.
See Casey v. Moore, 386 F.3d 896, 916 (9th Cir.
2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th
acknowledges that his claim is unexhausted (ECF No. 44, p.
3). He argues that this court should deem the claim
technically exhausted because he no longer has any effective
state remedy for challenging the 2014 parole denial. In fact,
Allen argues that he technically never had an available
state-court remedy for his 2014 parole denial due to the
prior history of his criminal case (ECF No. 61, pp. 5-8).
Allen attaches more than 450 pages of state-court minutes and
represents that by July 2012, he had filed at least 16 writs
in state court in his underlying state case. Id.;
exh. 24. Ultimately, the state district court enjoined Allen
from filing anything further that involved his criminal
conviction in the state case without first obtaining leave of
the court, ordering as follows:
The Court enjoins Defendant GENE ALLEN, or anyone acting on
his behalf, from filing any action in the Eighth Judicial
District Court, which arises out of or materially involves
his criminal conviction in District Court Case No. Cl 77427
and/or his resulting custody status, without first obtaining
leave from this Court and demonstrating that the action has
merit and is neither frivolous nor vexatious in nature. This
order should be narrowly construed toward the purpose of
preventing Defendant from perpetuating his pattern of
frivolous, vexatious legal filings attacking his criminal
conviction and imprisonment. Nothing in this order shall be
construed to preclude Defendant from defending himself in any
new civil or criminal actions brought against him as a
defendant in the Eighth Judicial District Court that do not
arise out of or are not materially related to his conviction
in Cl 77427 and/or his resulting custody status;
court also directed:
Leave of Court shall be forthcoming upon Defendant GENE
ALLEN's demonstrating through a "Petition for Leave
of Court to Permit Filing of Court Papers, " that the
proposed filing: (I) contains only claims, defenses, or other
arguments that are warranted by existing law or by a
reasonable argument for a change in existing law or a change
in the interpretation of existing law; (2) does not contain
allegations or information presented as fact for which
evidentiary support is not available or is not likely to be
discovered after further investigation; (3) does not contain
a claim or defense that is included for an improper purpose,
including, without limitation, for the purpose of harassing
the offender's opponent, causing unnecessary delay in the
litigation or increasing the cost of the litigation; (4) is
not repetitive or violative of a court order; and (5)