United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
pro se petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 comes before the Court on
various filings by the petitioner (ECF Nos. 28, 29, 32, 34,
35 & 41).
amended petition for writ of habeas corpus in this case
asserts three grounds for relief. (ECF No. 9). On March 13,
2018, the Court issued its screening order, in which it
dismissed Grounds 1, 2, and part of Ground 3 for failure to
state a claim. The Court directed respondents to file an
answer or otherwise respond to the remaining claims in Ground
3. (ECF No. 25).
response, petitioner filed a document objecting to the
Court's March 13, 2018, order and seeking to either
dismiss Ground 3 or, in the alternative, for recusal of the
undersigned from this action. (ECF Nos. 28 & 29). At or
around the same time, petitioner filed a Notice of Appeal of
the Court's March 13, 2018 order. (ECF No. 30). On May 4,
2018, petitioner filed a document entitled “Affidavit
of Judicial Notice . . . and Notice of Appeal” in which
petitioner clearly and repeatedly asserts that he has
dismissed Ground 3. (ECF Nos. 32 & 33 (E.g.:
“'Affiant Helfrich'” wants it on the
record that: I dismiss(ed) Ground Three (3) of said Habeas
Corpus at Bar' [Second Notice].”). On May 10, 2018,
petitioner filed another document indicating the dismissal of
Ground 3 and petitioner's desire to appeal the
Court's dismissal of Grounds 1 and 2. As respondents have
not yet answered or filed a motion for summary judgment in
this case, the Court construes petitioner's filings as a
notice of voluntary dismissal pursuant to Federal Rule of
Civil Procedure 41(a)(1)(A). Finally, petitioner has filed a
“Request for Judicial Notice” concerning prior
filing he has labeled “Coloring Agreement.” (ECF
first petitioner's motion for the recusal of the
undersigned judge, recusal is appropriate “where a
reasonable person with knowledge of all the facts would
conclude that the judge's impartiality might reasonably
be questioned.” Yagman v. Republic Ins., 987
F.2d 622, 626 (9th Cir. 1993) (citations omitted). “The
alleged prejudice must result from an extrajudicial source; a
judge's prior adverse ruling is not sufficient cause for
recusal.” United States v. Studley, 783 F.2d
934, 939 (9th Cir. 1986). Petitioner has not pointed to any
facts upon which the undersigned's impartiality might
reasonably be questioned. What petitioner characterizes as
“threats” in the Court's screening order were
nothing more than a warning to petitioner to stop filing
frivolous documents having nothing to do with his habeas
petition. The Court has inherent authority to manage its
docket and affairs “‘so as to achieve the orderly
and expeditious disposition of cases.'” Dietz
v. Bouldin, -- U.S. --, 136 S.Ct. 1885, 1891 (2016). The
Court's warning to petitioner that it would exercise its
authority in this case if he continued to file plainly
frivolous pleadings was not a threat and is not a basis for
recusal. The motion for recusal will therefore be denied.
to petitioner's notice of voluntarily dismissal of Ground
3, voluntary dismissal pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A) is effective upon filing the notice and
thus automatically granted. See Luna v. Kernan, 784
F.3d 640, 643 (9th Cir. 2015). Accordingly, Ground 3 has been
dismissed. Petitioner's notice does not indicate that the
dismissal should be with prejudice and appears to suggest it
should be without prejudice. (See, e.g., ECF No. 32
at 1). The dismissal of Ground 3 is therefore without
prejudice. Fed.R.Civ.P. 41(a)(1)(B).
other grounds of the petition have already been dismissed by
order of the Court, nothing remains pending in this action,
and this action will therefore be closed.
extent petitioner seeks any other relief in his
“Request for Judicial Notice, ” the relief is
extent petitioner seeks a certificate of appealability, the
request will also be denied. First, it is questionable
whether the appellate court will have jurisdiction over
petitioner's appeal following upon petitioner's
voluntary dismissal. See Gayler v. Neven, 2018 WL
505074, at *2 (D. Nev. Jan. 22, 2018). Second, even assuming
the circuit court has jurisdiction over petitioner's
appeal, petitioner cannot satisfy the standard for issuance
of a certificate of appealability.
order to proceed with an appeal, petitioner must receive a
certificate of appealability. 28 U.S.C. § 2253(c)(1);
Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v.
Ornoski, 435 F.3d 946, 950-951 (9th Cir.
2006); see also United States v. Mikels, 236 F.3d
550, 551-52 (9th Cir. 2001). Generally, a petitioner must
make “a substantial showing of the denial of a
constitutional right” to warrant a certificate of
appealability. Id.; 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
“The petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong.” Id.
(quoting Slack, 529 U.S. at 484). In order to meet
this threshold inquiry, the petitioner has the burden of
demonstrating that the issues are debatable among jurists of
reason; that a court could resolve the issues differently; or
that the questions are adequate to deserve encouragement to
proceed further. Id.
Court has considered the issues raised by petitioner, with
respect to whether they satisfy the standard for issuance of
a certificate of appealability, and determines that none meet
that standard. In particular, petitioner wishes to appeal the
dismissal of Grounds 1 and 2. (See ECF No. 32 at 1). Ground
1, which asserts a claim of ineffective assistance of
post-conviction counsel, is clearly not cognizable in habeas.
Martinez v. Schriro, 623 F.3d 731, 739-40 (9th Cir.
2010), rev'd on other grounds by Martinez v.
Ryan, 566 U.S. 1 (2012); see also 28 U.S.C.
§ 2254(i) (“The ineffectiveness or incompetence of
counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding
arising under section 2254.”). Ground 2, which asserts
a claim that the Nevada voluntary manslaughter statute is
unconstitutional because it did not contain an enacting
clause when Nevada's state statutes were codified into
the Nevada Revised Statutes is plainly frivolous. Reasonable
jurists would not find dismissal of these two claims was to
be debatable or wrong. The Court will therefore deny
petitioner a certificate of appealability.
accordance with the foregoing, IT IS HEREBY ORDERED that
petitioner's motion for the recusal of the undersigned
(ECF No. 28 & 29) is DENIED.
FURTHER ORDERED that petitioner's notice of voluntary
dismissal is automatically GRANTED pursuant to Rule
41(a)(1)(A), and the Clerk of Court is directed to CLOSE this
FURTHER ORDERED that any other relief requested by
petitioner, including in his “Request for Judicial