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Allen v. Cox

United States District Court, D. Nevada

March 8, 2017

GENE A. ALLEN, Petitioner,
JAMES G. COX, et al., Respondents.



         This is 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).

         I. Procedural History and Background

         On 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 2).[1] 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. 10.

         Relevant 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.

         This 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).

         II. Legal Standards & Analysis: Exhaustion, Technical Exhaustion and Procedural Default

         Allen 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 6.

         A 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 Cir. 1981).

         Allen 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;

         The 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) ...

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