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Helfrich v. State

United States District Court, D. Nevada

March 13, 2018

STATE OF NEVADA, et al., Respondents.


          RICHARD F. BOULWARE, II, United States District Judge

         This habeas action comes before the Court on petitioner's second, third and fourth pauper applications (ECF Nos. 8, 14 & 23), on multiple motions filed by petitioner (ECF Nos. 10, 11, 12, 13, 17, 18 & 20), and for initial review of the amended petition (ECF No. 9) under Rule 4 of the Rules Governing Section 2254 Cases (the “Habeas Rules”).

         I. Pauper Applications

         Petitioner's third pauper application (ECF No. 14) is properly completed with all required attachments. The Court finds based on the application that petitioner is unable to pay the filing fee. The third application therefore will be granted, and the remaining two applications will be denied without prejudice as moot. The Court accordingly proceeds to initial review of the amended petition (ECF No. 9).

         11. Screening

         With regard to initial review, habeas pleading is not notice pleading, and a habeas petitioner must state the specific facts that allegedly entitle him to habeas relief. See Mayle v. Felix, 545 U.S. 644, 655-56 (2005). Even under a more liberal notice pleading standard, conclusory assertions that constitute merely formulaic recitations of the elements of a cause of action and that are devoid of further factual enhancement do not state a claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 677-81 & 686 (2009). Accordingly, even under the more liberal notice pleading rules, the allegations of a pleading must “permit the court to infer more than the mere possibility” that a constitutional violation has occurred. 556 U.S. at 679. The stricter habeas pleading rules similarly require more than “mere conclusions of law, unsupported by any facts.” Mayle, 545 U.S. at 655. A habeas petitioner instead must “state facts that point to a real possibility of constitutional error.” Id.

         Ground 1 does not present a claim that is cognizable in a federal habeas corpus proceeding. In Ground 1, petitioner alleges that his state post-conviction counsel had a conflict of interest and provided ineffective assistance at the state post-conviction evidentiary hearing. (See ECF No. 9, at 2 & 4.)[1] There is no federal constitutional right to appointed counsel in a state post-conviction proceeding, and claims of error in such proceedings do not present a federally cognizable claim. E.g., Franzen v. Brinkman, 877 F.3d 26 (9th Cir. 1989). While alleged inadequate assistance of state post-conviction counsel may be considered with respect to certain procedural issues in a federal habeas corpus proceeding, a claim of such alleged inadequate assistance does not present an independently viable federal constitutional claim in its own right. See generally Martinez v. Ryan, 566 U.S. 1, 17 (2012). The Court further does not have appellate jurisdiction over the state courts, and it therefore generally cannot issue decrees to those courts or transfer this action to those courts.

         Ground 2 is frivolous on its face. In Ground 2, petitioner alleges that the Nevada voluntary manslaughter statute under which he was convicted pursuant to a plea, N.R.S. 200.080, is unconstitutional because, inter alia, it did not contain an enacting clause when Nevada's state statutes were codified into the Nevada Revised Statutes some six decades ago. A number of Nevada state inmates have attempted to overturn their convictions pro se based upon substantially similar arguments. The Supreme Court of Nevada and the Nevada Court of Appeals repeatedly have rejected the core argument presented here regarding the alleged lack of enacting clauses in the Nevada Revised Statutes in numerous opinions, which were not published apparently due to the nonprecedential value of an opinion on such a patently meritless challenge.[2] The Supreme Court of Nevada is the final arbiter of Nevada state law, including Nevada state constitutional law. The state supreme court's rejection of petitioner's core argument regarding an alleged lack of enacting clauses is the final word on that subject, and a federal court may not reach a different conclusion on the Nevada state law issue undergirding petitioner's federal claims. Nothing in the strained logic presented by petitioner leads to a different outcome with regard to his remaining related arguments. An alleged violation of a state constitutional doctrine of separation of powers does not give rise to a viable federal constitutional claim.

         To the extent that Ground 3 carries forward the same frivolous argument that N.R.S. 200.080 is unconstitutional, Ground 3 fails to state a claim upon which relief may be granted. Ground 3 otherwise is conclusory to any arguendo extent that it alleges that the statute otherwise is unconstitutional, because it lacks supporting specific factual allegations.

         Grounds 1 and 2 and the portion of Ground 3 alleging that N.R.S. 200.080 is unconstitutional accordingly will be dismissed for failure to state a claim upon which relief may be granted. The Court will direct service of the remainder of Ground 3 for a response, subject to the provisions infra.[3]

         III. Remaining Motions

         Petitioner's motion (ECF No. 10) to file a supplemental memorandum and for a telephonic hearing will be denied. Petitioner can present legal argument as to potential defenses and/or on the merits in reply to the response filed by respondents after service.

         Petitioner's motion (ECF No. 11) for reconsideration of the denial of his motion for appointment of counsel will be denied. Appointment of counsel herein is governed by 18 U.S.C. § 3006A, not the Americans with Disabilities Act or Rehabilitation Act. Petitioner's multitudinous filings in state and federal court belie his assertions that he has cognitive impairments that render him incapable of presenting his position adequately in proper person. Similarly, it is apparent that he can do so with the prison law library resources currently available to him. The Court again finds that the interests of justice do not require the appointment of counsel herein, for the reasons previously assigned. (See ECF No. 5, at 2-3.)

         The motions (ECF Nos. 12 and 13) for a temporary restraining order and preliminary injunction will be denied as, in the main, moot. The motions sought to compel state correctional officers to produce the financial attachments required for petitioner's pauper application. Petitioner since has filed a properly completed pauper application, and the application has been granted. To the extent that petitioner is concerned about a law library supervisor allegedly not notarizing his filings, petitioner can file papers with a declaration under penalty of perjury under 28 U.S.C. § 1746, such that notarized filings are ...

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