United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
has paid the filing fee. The Court has reviewed the petition
for a writ of habeas corpus pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts. Petitioner will need to file an amended petition.
was convicted of battery resulting in substantial bodily harm
on a person 60 years of age or older, burglary, robbery of a
person 60 years of age or older, and grand larceny of a motor
vehicle. The Nevada Supreme Court affirmed his conviction on
direct appeal. Petitioner then filed a post-conviction habeas
corpus petition in the state district court. To the best of
this Court's knowledge, that petition is still pending in
the state district court.
1 through 6 of the petition suffer from the same problem. In
each ground, petitioner alleges both an error by the state
courts and a claim of ineffective assistance of counsel.
These are legally distinct claims, and they should be alleged
in separate grounds. See Kimmelman v. Morrison, 477
U.S. 365, 374 (1986). Furthermore, petitioner appears to have
not exhausted his available state-court remedies for the
ineffective- assistance claims, required by 28 U.S.C. §
2254(b), because in Nevada claims of ineffective assistance
of counsel must be raised in a post-conviction habeas corpus
petition, and that petition is still pending in the state
district court. The Court will not require respondents to
pick out which sentences in grounds 1 through 6 are not
exhausted; it would be time consuming and prone to error.
Petitioner will need to file an amended petition that keeps
his claims of court error and his claims of ineffective
assistance of counsel in distinct grounds.
grounds 7 through 22 of the federal petition, petitioner
incorporates by reference the grounds he raises in his
supplemental post-conviction habeas corpus petition filed in
the state district court. That supplemental state petition is
attached as Exhibit B to the current federal petition.
Because the state post-conviction proceedings are still
pending, any claim that petitioner has raised only in those
proceedings, and not before the Nevada Supreme Court on
direct appeal, is unexhausted.
ground 7, petitioner complains that his attorneys in his
state post-conviction proceedings have failed to raise claims
that his counsel in the criminal proceedings had a conflict
of interest. Petitioner does not have a right of effective
assistance of post-conviction counsel. Coleman v.
Thompson, 501 U.S. 722, 752 (1991). If petitioner wants
to present a claim that his counsel in the criminal
proceedings had a conflict of interest, then in an amended
petition he needs to remove any reference of post-conviction
counsel's failure to raise that claim in the state habeas
11 has the same problem as grounds 1 through 6. Most of the
ground alleges that the judge sentenced petitioner
incorrectly. Then, at the very end, petitioner claims that
appellate counsel failed to raise the issue on direct appeal.
If petitioner is intending to present a claim of trial-court
error and a claim of ineffective assistance of appellate
counsel, then he needs to present them in separate grounds.
12 has the same problem as grounds 1 through 6. Most of the
ground is a claim that a police officer behaved improperly,
but interspersed with those allegations are claims that trial
counsel failed to bring out this information in trial. Again,
petitioner needs to allege these claims in separate grounds.
13 has multiple problems. First, similar to grounds 1 through
6, 11, and 12, it contains both claims of prosecutorial
misconduct and claims of ineffective assistance of counsel.
Petitioner needs to allege these claims in separate grounds.
Second, petitioner complains that his state post-conviction
counsel did not allege this ground correctly. Petitioner does
not have a right to effective assistance of post-conviction
counsel, and he needs to omit this claim in the amended
16 is a claim of ineffective assistance of post-conviction
counsel. Petitioner does not have a right to effective
assistance of post-conviction counsel, and he needs to omit
this claim in the amended petition.
further ordered that the Clerk of the Court file the petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
further ordered that the Clerk of the Court send petitioner a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 form with instructions. Petitioner will have
thirty (30) days from the date that this order is entered in
which to file an amended petition to correct the noted
deficiencies. Neither the foregoing deadline nor any
extension thereof signifies or will signify any implied
finding of a basis for tolling during the time period
established. Petitioner at all times remains responsible for
calculating the running of the federal limitation period
under 28 U.S.C. § 2244(d)(1) and timely asserting
claims. Failure to comply with this order will result in the
dismissal of grounds 1 through 7, 11, 12, 13, and 16 from
further ordered that petitioner clearly title the amended
petition as such by placing the word “AMENDED”
immediately above “Petition for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254” on page 1 in the
caption, and Petitioner must place the case number,
3:16-cv-00749-MMD-VPC, above the word “AMENDED.”
It is further ordered that the Clerk add Adam Laxalt,
Attorney General for the State of Nevada, as counsel for
further ordered that the Clerk electronically serve upon
respondents a copy of the petition and this order.
Respondents' counsel must enter a notice of appearance
herein within twenty (20) days of entry of this order, but no