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Grigsby v. Neven

United States District Court, D. Nevada

January 9, 2018

DENNIS MARC GRIGSBY, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion (ECF No. 9) to dismiss along with petitioner's motion (ECF No. 23) for appointment of counsel, motion (ECF No. 24) for expansion of the record, and motion (ECF No. 25) for an evidentiary hearing.

         Background

         Petitioner Dennis Grigsby challenges his 2009 Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon and possession of a firearm by an ex-felon, in connection with the April 2, 2008, murder of Anthony Davis in Clark County, Nevada. He is serving a sentence on the murder charge of life without the possibility of parole plus a consecutive term of 60 to 240 months on the weapon enhancement, and he also was sentenced to a concurrent sentence of 16 to 72 months on the weapon possession charge. (ECF No. 15-10; Exhibit 28.)

         Petitioner challenged his conviction on both direct appeal and in a timely state post-conviction petition.

         Motion to Dismiss

         Respondents contend that federal claims presented in Grounds 1, 2, 4 and 5 are not exhausted and that Grounds 2, 4 and 5 otherwise present only state law claims that are not cognizable in federal habeas corpus. Respondents further contend that Ground 9 presents a noncognizable claim of alleged error in the state post-conviction proceedings that also in any event is unexhausted.

         With regard to Grounds 1, 2, 4 and 5, petitioner states that he does not oppose respondents' position as to these grounds; and he “specifically request[s] that Grounds 1, 2, 4 and 5 be excluded from federal habeas corpus review of [the] pending petition.” (ECF No. 22, at 5, lines 16-17 & 19-23; see also id., at 8, lines 13-14.)[1] The Court accordingly will dismiss Grounds 1, 2, 4 and 5 without prejudice.[2]

         Petitioner does challenge respondents' position as to Ground 9.

         In Ground 9, petitioner alleges that he was denied rights to due process and equal protection in violation of, inter alia, the Fifth and Fourteenth Amendments because the state supreme court issued an allegedly premature order of affirmance on the state post-conviction appeal when an evidentiary hearing had been scheduled in the state district court on a number of grounds in a superseding state petition.

         Ground 9 presents a claim of procedural error in state post-conviction proceedings that is not cognizable on federal habeas review. The Court has jurisdiction under 28 U.S.C. § 2254 only over a collateral challenge to a state court judgment of conviction. The Court otherwise does not have jurisdiction to entertain collateral attacks on other types of judgments; and a federal district court does not exercise appellate or supervisory jurisdiction over the state courts. Accordingly, claims of procedural error in state post-conviction proceedings are not cognizable in a federal habeas corpus proceeding, even when such claims are based on the federal constitution. See, e.g., Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989). As with claims of federal constitutional error regarding other state court judgments, such claims may be pursued only via certiorari review in the Supreme Court.

         The Court expresses no opinion at this juncture as to whether the circumstances alleged in Ground 9 may be relevant to other procedural issues on federal habeas review, notwithstanding that the ground is not cognizable as an independent claim.

         The Court accordingly will grant respondents' motion to dismiss and dismiss Grounds 1, 2, 4, 5 and 9 without prejudice.

         Remaining ...


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