United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE
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.
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.)
challenged his conviction on both direct appeal and in a
timely state post-conviction petition.
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
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.) The Court accordingly will dismiss Grounds
1, 2, 4 and 5 without prejudice.
does challenge respondents' position as to Ground 9.
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.
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.
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.
Court accordingly will grant respondents' motion to
dismiss and dismiss Grounds 1, 2, 4, 5 and 9 without