United States District Court, D. Nevada
compliance with this court's order of August 16, 2019,
Conor James Harris, a Nevada prisoner, has paid the filing
fee for his petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. ECF Nos. 3/8.
of the Rules Governing Section 2254 Cases in the United
States District Courts (Habeas Rules) requires the court to
make a preliminary review of each petition for writ of habeas
corpus. The court must summarily dismiss a petition
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court....” Habeas Rule 4;
O'Bremski v. Maass, 915 F.2d 418, 420
(9th Cir. 1990); see also Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Habeas Rule 2(c) requires that a petition 1) specify all
grounds of relief available to the petitioner; 2) state the
facts supporting each ground; and 3) state the relief
requested. Notice pleading is not sufficient; rather, the
petition must state facts that point to a real possibility of
constitutional error. Rule 4, Advisory Committee Notes, 1976
Adoption; O'Bremski v. Maass, 915 F.2d at 420
(quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7
(1977)). Allegations in a petition that are vague,
conclusory, patently frivolous or false, or palpably
incredible are subject to summary dismissal. Hendricks v.
Vasquez, 908 F.2d at 491.
Ground One of his petition, Harris claims a constitutional
violation arising from the state court's dismissal of his
state collateral proceedings based on laches or untimeliness.
ECF No. 6; p. 3, 15-17. This claim fails because
“federal habeas relief is not available to redress
alleged procedural errors in state post-conviction
proceedings.” Ortiz v. Stewart, 149 F.3d 923,
939 (9th Cir. 1998). See also Gerlaugh v.
Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997)
(errors allegedly occurring during state post-conviction
proceedings are not cognizable in a federal habeas action);
Franzen v. Brinkman, 877 F.2d 26, 26 (9th
Cir. 1989) (“A [habeas corpus] petition alleging errors
in the state post-conviction review process is not
addressable through habeas corpus proceedings.”).
Ground Two, Harris alleges that “[a]ll state and
federal laws regarding juvenile sentencing policies and
procedures that do not include 18 year-old offenders are
contrary to the very facts material to justify said laws, and
[thus] are unconstitutional in their application.”
Harris is serving two consecutive life sentences without
possibility of a parole for a murder he committed with a
deadly weapon when he was 18 years old. Id., p.
10-11, 13. Though inartfully-drafted, Ground Two appears to
be alleging a claim under Miller v. Alabama, 567
U.S. 460 (2012).
Miller, “the Court held that a juvenile
convicted of a homicide offense could not be sentenced to
life in prison without parole absent consideration of the
juvenile's special circumstances in light of the
principles and purposes of juvenile sentencing.”
Montgomery v. Louisiana, 136 S.Ct. 718, 725 (2016).
Accordingly, the Court in Miller held “that
mandatory life without parole for those under the age of 18
at the time of their crimes violates the Eighth
Amendment's prohibition on 'cruel and unusual
punishments.'” Miller, 567 U.S. at 465.
The Court in Montgomery held that
Miller's prohibition on mandatory life without
parole for juvenile offenders announced a new substantive
rule that, under the Constitution, is retroactive in cases on
state collateral review. Montgomery, 136 S.Ct. at
U.S. District Court for the District of Connecticut, in a
case Harris cites, recently rejected an argument “that
Miller drew a bright line at 18 years old, which
prevents this court from applying the rule in Miller
to an 18-year-old.” Cruz v. United States,
2018 WL 1541898, at *15 (D. Conn. Mar. 29, 2018). The court
determined “that Miller applies to
18-year-olds and thus that ‘the Eighth Amendment
forbids a sentencing scheme that mandates life in prison
without possibility of parole' for offenders who were 18
years old at the time of their crimes.” Id. at
*25 (quoting Miller, 567 U.S. at 479). In addition,
there is case law supporting an argument that Miller
is not confined to instances in which the life without
possibility of parole sentence was imposed under a mandatory
penalty scheme. See, e.g., Malvo v.
Mathena, 893 F.3d 265, 274 (4th Cir. 2018),
cert. granted, 139 S.Ct. 1317 (2019). Thus, this
court is not convinced, at this point, that Miller
relief is not available to Harris merely because the
sentencing court retained discretion to impose a sentence
less than life without possibility of parole.
court reserves judgment as to merits of Harris's
Miller claim. He has, however, alleged facts that point
to a real possibility of constitutional error. Accordingly,
his petition is not subject to summary dismissal and merits
service upon the respondents.
addition, the court will grant Harris's motion for
appointment of counsel. “Indigent state prisoners
applying for habeas corpus relief are not entitled to
appointed counsel unless the circumstances of a particular
case indicate that appointed counsel is necessary to prevent
due process violations.” Chaney v. Lewis, 801
F.2d 1191, 1196 (9th Cir. 1986) (citing Kreiling v.
Field, 431 F.2d 638, 640 (9th Cir. 1970) (per
curiam). The court may, however, appoint counsel at any stage
of the proceedings “if the interests of justice so
require.” See 18 U.S.C. § 3006A; see
also Rule 8(c), Rules Governing § 2254 Cases;
Chaney, 801 F.2d at 1196. The issues discussed above
implicate relatively complex legal analysis, and it appears
that Harris may not be able to adequately litigate those
issues without counsel. Therefore, the court finds that
appointment of counsel is in the interests of justice.
IS THEREFORE ORDERED that the Clerk of Court shall
add Aaron D. Ford, Attorney General of the State of Nevada,
as counsel for respondents.
IS FURTHER ORDERED that the Clerk shall
electronically serve upon respondents a copy of the petition
for writ of habeas corpus, and a copy of this order.
IS FURTHER ORDERED that respondents shall have 20
days from the date on which the petition is served upon them
to appear in this action. Respondents will not be required to
respond to the habeas petition at this time.
IS FURTHER ORDERED that petitioner's motion for
appointment of counsel (ECF No. 2) is GRANTED. The Federal
Public Defender for the District of Nevada (FPD) is appointed
to represent petitioner. If the FPD is unable to represent
the petitioner, due to a conflict of interest or other
reason, then alternate counsel will be appointed. In either
case, counsel will represent the petitioner in all
federal-court proceedings relating to this matter, unless
allowed to withdraw.
IS FURTHER ORDERED that the Clerk shall
electronically serve upon the FPD a copy of this order,
together with a copy of the petition for writ of habeas
IS FURTHER ORDERED that the FPD shall have 20 days
from the date of entry of this order to file a notice of
appearance, or to indicate to the court its ...