United States District Court, D. Nevada
P. GORDON, UNITED STATES DISTRICT JUDGE.
James Williams has submitted an application to proceed in
forma pauperis (ECF No. 1) and a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. I find that
Williams is unable to pay the filing fee. I have reviewed the
petition under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts. I deny the
petition because it lacks merit.
alleges that he was selling bottles of water to passers-by.
Two police officers arrested him for battery on a protected
person and making a false statement to a police officer. In
the Las Vegas Justice Court, Case No. 16M12317X,
Williams pleaded no-contest to obstructing a public officer.
On October 11, 2016, the justice court entered the judgment
of conviction. Williams was sentenced to 60 days in jail,
suspended, and told to stay out of trouble. Williams appealed
the judgment to the Eighth Judicial District Court of the
State of Nevada, Case No. C-17-321097-A. On March 27,
2019, the state district court denied the appeal. Williams
commenced this action after entry of the judgment of
conviction but before the state district court decided the
claims that the charges for which he was arrested, and the
charge to which he pleaded guilty, were a disguise for a
violation of Clark County Code § 6.04.130. That
It is unlawful for any person to sell, peddle, offer to sell
or solicit for sale by offering or displaying any
merchandise, goods, items, wares, or services on any improved
or unimproved portion of a public right-of-way, including
private property upon which a limited easement of public
access has been granted, in the unincorporated area of Clark
County except that which is otherwise expressly permitted by
this code or state statute. This prohibition restricts only
sales actually occurring or proposed to occur on the
aforementioned public right-of-way, and does not prohibit any
person from distributing advertisements or other promotional
materials designed to encourage commercial transactions at
licensed business locations.
also argues that § 6.04.130 is unconstitutional.
first problem with the petition is that it is not clear
whether Williams's sentence still is in effect. The
justice-court docket noted that the stay-out-of-trouble
provision was in effect from October 11, 2016, through
January 10, 2017. If that sentence was in effect while
Williams's appeal to the state district court was
pending, then it expired more than a year before he commenced
this action. Williams would not have been in custody when he
commenced this action, and he would not be able to challenge
the judgment of conviction. Maleng v. Cook, 490 U.S.
488, 492 (1989).
Williams's sentence still is in effect, his plea keeps
him from obtaining any relief. For the purposes of this
order, his no-contest plea to obstructing a public officer is
equivalent to a guilty plea. Williams may not use habeas
corpus to raise claims of constitutional violations that
occurred before entry of the plea; he may attack only the
voluntariness of the plea. Tollett v. Henderson, 411
U.S. 258, 266-67 (1973). Even if Williams is correct that the
obstruction conviction really is a disguise for a violation
of § 6.04.130, his plea means that he may not raise this
issue in a habeas corpus petition. Williams does not claim
that his plea was unknowing or involuntary. Consequently, the
petition is without merit.
appeal the denial of a petition for a writ of habeas corpus,
Williams must obtain a certificate of appealability, after
making a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. §2253(c).
Where a district court has rejected the constitutional claims
on the merits, the showing required to satisfy §2253(c)
is straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
The issue becomes somewhat more complicated where, as here,
the district court dismisses the petition based on procedural
grounds. We hold as follows: When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner
shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see
also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir.
2000). Although it is unclear whether Williams's sentence
still is in effect, it is clear that his plea precludes his
constitutional claims. Reasonable jurists would not find that
conclusion to be debatable or wrong. The court will not issue
a certificate of appealability.
THEREFORE IS ORDERED that the application to proceed in
forma pauperis (ECF No. 1) is GRANTED.
Williams need not pay the filing fee of $5.00.
FURTHER IS ORDERED that the clerk of the court shall file the
petition for a writ of habeas corpus pursuant to 28 U.S.C.
FURTHER IS ORDERED that the petition for a writ of habeas
corpus is DENIED. The clerk of the court
shall enter ...