United States District Court, D. Nevada
ORDER DIRECTING PETITIONER TO AMEND PETITION
Jennifer A. Dorsey, U.S. District Judge
petitioner James William Keck is an inmate at the High Desert
State Prison (HDSP) who pled guilty to attempted murder with
the use of a deadly weapon, battery with the use of a deadly
weapon resulting in substantial bodily harm, assault with a
deadly weapon, and burglary while in possession of a firearm.
He petitions for a writ of habeas corpus, and I now screen
his petition. After reviewing his petition, I am uncertain of
what exactly his claims-and the bases for those claims-are.
The attorneys that assisted Keck with this petition have
withdrawn and have been replaced by new counsel, so I give
Keck's new counsel leave to amend the petition to cure
the deficiencies that I outline in this order.
The petition does not name a proper respondent.
first deficiency is that Keck named only the State of Nevada
as a respondent to his petition. The State of Nevada has
sovereign immunity and may not be sued, regardless of the
relief sought. Keck must instead name his immediate
custodian (perhaps the warden of HDSP) as a
respondent. This District's pro se form also
includes the State Attorney General as a respondent. Keck
must name a proper respondent in his amended petition.
The petition is not signed under penalty of perjury.
28 U.S.C. § 2242 and Rule 2(c)(5) of the Rules Governing
Section 2254 Cases, the petition must be signed under penalty
of perjury either by the petitioner or by a person authorized
to sign for the petitioner. There is no such oath on
Keck's petition, so I give him leave to cure this
deficiency in an amended petition.
The claims are not stated clearly and distinctly.
difficult to identify, separate, and screen Keck's
individual claims in his petition's current state. His
claims are alleged in an overlapping, repetitive fashion that
make it difficult to discern whether an allegation is
presented as background to another claim or as a distinct and
separate claim. For example, ground one begins as an
ineffective-assistance-of-counsel claim, but then switches
back and forth between ineffective-assistance allegations and
trial-court-error allegations. And ground two begins as a
trial-court-error claim, but then incorporates
the respondents and the reviewing court need to be able to
determine from the petition which claims are being presented,
the specific factual bases for those claims, and the extent
to which those specific claims have been exhausted in the
state courts. Keck offers two grounds-ineffective assistance
and trial court error-and seems to be alleging multiple bases
for each of them, but it's not entirely clear, so I am
unable to fairly screen his petition. If Keck has multiple
reasons why he believes his counsel was ineffective, then he
should structure his petition with subheadings for subclaims
within his overarching ineffective-assistance claim.
Likewise, Keck should use subheadings for each independent
basis for his trial-court-error claim. And to avoid the
confusion that I experienced while reviewing this petition,
the amended petition should segregate the
ineffective-assistance allegations from the trial-court-error
allegations and devote them to their respective main
Keck urges the wrong standard for evaluating ground
appears to have cut and pasted his direct-appeal argument
into the federal petition.But my job is not to review the trial
court's sentence for an abuse of discretion. My job is to
determine whether the state court's decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” Keck should analyze the
trial court's actions under the applicable standard.
IT IS HEREBY ORDERED that Keck has until June 26,
2018, to file an amended petition that cures the deficiencies
that I have outlined in this order I will screen the
amended pleading before I order other action in this case.
But Keck remains responsible at all times for calculating the
running of the federal limitation period and timely asserting
claims, without regard to any deadlines established or
extensions granted. Although I grant Keck ...