United States District Court, D. Nevada
GENE A. H. ALLEN, Petitioner,
STATE OF NEVADA, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
has filed a habeas petition under 28 U.S.C. § 2241
without properly commencing the action by paying the filing
fee or filing a complete pauper application. Although
Petitioner submitted an application and a financial
certificate, he did not submit his inmate account statements
for the past six months. LSR 1-1 & 1-2.
the petition is subject to dismissal due to multiple
Petitioner is in custody pursuant to a state court judgment
of conviction.Accordingly, the proper procedural vehicle
for his petition is 28 U.S.C. § 2254, not § 2241.
Montue v. Dep't of Corr., 279 Fed. App'x
506, 507 (9th Cir. 2008) (unpublished disposition).
the petition reflects no basis for Petitioner to bring an
action against the U.S. Attorney General, Jeff Sessions.
Although Petitioner claims to be subject to an ICE detainer,
any challenge to that hold is not cognizable in
habeas. See Bederian v. Apker, 2017 WL
880416, at *1 (E.D. Cal. Mar. 6, 2017); Kha Minh Dang v.
Short, 2016 WL 1070811, at *3 (D. Or. Mar. 16, 2016).
this Court does not have jurisdiction over an action brought
against the State of Nevada. The state sovereign immunity
recognized by the Eleventh Amendment bars suit against the
State in federal court, regardless of the relief sought.
See, e.g., Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100-01 (1984).
Petitioner appears to be asserting a violation of his Sixth
Amendment right to counsel based on the performance of his
court-appointed attorney in another, recently dismissed
federal habeas proceeding, No. 3:14-cv-510-RCJ-VPC.
(See ECF No. 1). In No. 3:14-cv-510, Petitioner
challenged the Nevada Parole Board's denial of his
release on parole. Petitioner was appointed counsel for that
petition, and he argues in this petition that counsel was not
acting in his best interests and refused to raise meritorious
claims. However, there is no right to counsel in noncapital
federal habeas proceedings, and thus the right to counsel
guaranteed by the Sixth Amendment does not apply to
Petitioner's federal habeas petition. Bonin v.
Vasquez, 999 F.2d 425, 430 (9th Cir. 1993).
Petitioner's claim in this respect is therefore not
cognizable in this action.
Petitioner argues that his right to send mail and access the
courts has been violated in connection with correspondence he
sent to his attorney in No. 3:14-cv-510-RCJ-VPC. Apart from
the fact Petitioner does not identify who violated these
rights, such violations are also not cognizable in habeas as
success on those claims would not necessarily lead to
Petitioner's immediate or earlier release. See
Nettles v. Grounds, 830 F.3d 922, 930-31 (9th Cir.
No. 3:14-cv-510-RCJ-VPC was dismissed with prejudice for
failure to prosecute. (See ECF No. 98 in No.
3:14-cv-510-RCJ-VPC). Thus, to the extent the petition may be
read to assert a challenge to Petitioner's denial of
parole, the petition is successive. The Court lacks
jurisdiction to consider a successive absent authorization by
the Court of Appeals. 28 U.S.C. § 2244(b).
to the extent Petitioner intends his arguments as a basis for
reconsideration of the dismissal of his petition in No.
3:14-cv-510-RCJ-VPC, those arguments are more properly raised
in that case and not in a separate habeas action.
therefore is ordered that this action shall be dismissed
further is ordered that a certificate of appealability is
denied. Jurists of reason would not find debatable whether
the Court was correct in its dismissal of this action, for
the reasons discussed herein.
further is ordered, pursuant to Rule 4 of the Rules Governing
Section 2254 Cases, that the Clerk shall make informal
electronic service upon respondents by adding Nevada Attorney
General Adam P. Laxalt as counsel for respondents and
directing a notice of electronic filing of this order to his
office. No. ...