United States District Court, D. Nevada
P. GORDON UNITED STATES DISTRICT JUDGE
the court is the amended petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 7). The court has
reviewed it pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts. The court
denies the petition because it lacks merit on its face.
bench trial in the Las Vegas Municipal Court, petitioner was
found guilty of one count of domestic battery and two counts
of simple battery. Petitioner appealed to the state district
court. The sole ground for relief was that three of the
prosecution's witnesses had violated Nevada's
witness-exclusion rule, Nev. Rev. Stat. § 50.155. The
state district court agreed and remanded to the municipal
court. The prosecution then petitioned the Nevada Supreme
Court for a writ of mandamus. City of Las Vegas v. Eighth
Judicial District Court (Kamide), 405 P.3d 110, 111
(Nev. 2017). The Nevada Supreme Court granted the petition,
directing the state district court to vacate its decision and
to enter a new decision affirming the conviction. The Nevada
Supreme Court held that the state district court could not
find a plain error under established law governing Nev. Rev.
Stat. § 50.155. Id. at 113-14.
then commenced this action. He started with a civil rights
complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). He
then filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (ECF No. 4) and then an amended
petition (ECF No. 7). The court assumes that the habeas
corpus petition has superseded the civil rights complaint,
because the relief that petitioner seeks is available through
only habeas corpus. See Preiser v. Rodriguez, 411
U.S. 475, 500 (1973).
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). “By its terms § 2254(d)
bars relitigation of any claim ‘adjudicated on the
merits' in state court, subject only to the exceptions in
§§ 2254(d)(1) and (d)(2).” Harrington v.
Richter, 562 U.S. 86, 98 (2011).
Federal habeas relief may not be granted for claims subject
to § 2254(d) unless it is shown that the earlier state
court's decision “was contrary to” federal
law then clearly established in the holdings of this Court,
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362,
412 (2000); or that it “involved an unreasonable
application of” such law, § 2254(d)(1); or that it
“was based on an unreasonable determination of the
facts” in light of the record before the state court,
Richter, 562 U.S. at 100. “For purposes of
§ 2254(d)(1), ‘an unreasonable application of
federal law is different from an incorrect application of
federal law.'” Id. (citation omitted).
“A state court's determination that a claim lacks
merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Id. (citation omitted).
sole ground for relief is that the witnesses violated
Nevada's witness-exclusion rule, Nev. Rev. Stat. §
50.155, and the Constitution of the United States.
“Neither this court nor the Supreme Court has ever held
that the failure to exclude witnesses can violate due
process.” Larson v. Palmateer, 515 F.3d 1057,
1065 (9th Cir. 2008). That ends the matter, as far as federal
habeas corpus goes. Because federal law on this question has
not been clearly established by the Supreme Court of the
United States, the Nevada Supreme Court's decision cannot
be an unreasonable application of, or contrary to, clearly
established federal law, and this court cannot grant relief.
Carey v. Musladin, 549 U.S. 70, 77 (2006). The
petition is without merit on its face.
the state-court proceedings were pending, petitioner was not
in custody. He was taken into custody after the Nevada
Supreme Court's decision and after commencement of this
action. In his motion to stay proceedings in state court (ECF
No. 8), petitioner asks the court to order him released on
his own recognizance while this petition is pending. The
court denies this request because petitioner cannot obtain
relief through federal habeas corpus.
jurists would not find the court's conclusion to be
debatable or wrong, and the court will not issue a
certificate of appealability.
THEREFORE ORDERED that petitioner's motion to stay
proceedings in state ...