Voss v. Crawford

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Petitioner Steven Floyd Voss, a pro se Nevada prisoner initiated this habeas corpus proceeding under 28 U.S.C. § 2254. This habeas matter is before the Court on Voss's Motion for Stay and Abeyance (ECF No. 8) and an initial review under the Rules Governing Section 2254 Cases.^[1] For the reasons discussed below, the Court denies Voss's request for stay and abeyance and orders him to show cause why his Petition should not be dismissed as premature.

         II. BACKGROUND

         In 1996, Voss was convicted of burglary, forgery, uttering a forged instrument, and attempted theft in the Second Judicial District Court for Washoe County (“state court”). State of Nevada v. Steven Floyd Voss, CR96-1581.^[2] He was sentenced to a maximum of ten years on the burglary count and four consecutive four-year terms on the remaining counts. (ECF No. 1 at 27-28.) The state court entered a judgment of conviction on /// November 27, 1996.^[3] (Id.) In August 2001, the state court granted in part and denied in part Voss's state petition for writ of habeas corpus (“state petition”) and ordered a new sentencing hearing. (Id. at 30-38.) However, to date, Voss has not been resentenced. (Id. at 51-53.)

         In February 2002, Voss filed a federal habeas petition challenging the judgment of conviction in CR96-1581. See Voss v. Crawford, 3:02-cv-0092-DWH-VPC (“2002 Case”).^[4] The petition in the 2002 Case raised seven grounds, including violations of his constitutional rights to due process, fair trial, presumption of innocence, and effective assistance of counsel-it did not address resentencing. (Id., ECF No. 40.) The Court denied his petition on the merits in February 2005. (Id., ECF No. 86.) The Court of Appeals denied a certificate of appealability (Id., ECF No. 101), and the United States Supreme Court denied certiorari in February 2006.

         In October 2017, Voss filed a petition for extraordinary relief. The Nevada Court of Appeals granted Voss's petition for extraordinary relief and issued a writ of mandamus in August 2018. (ECF No. 1 at 45-49.) The appellate court found that, because the state court did not conduct a resentencing or enter an amended judgment of conviction, “there is currently no valid judgment of conviction entered in CR96-1581.” (Id. at 48.) Appearing that Voss had no plain, speedy, and adequate remedy available to him, the appellate court concluded that mandamus relief was warranted. (Id.) The Nevada Court of Appeals therefore instructed the state court “to resentence Voss and enter an amended judgment of conviction in CR96-1581.” (Id. at 49.) In addition, the state court must credit Voss “with all the time he has served pursuant to the invalid judgment of conviction.” (Id. at 49 n.2.) Voss sought rehearing. The Nevada Court of Appeals denied his request in October 2018. He petitioned for review by the Nevada Supreme Court, but his request was denied in December 2018. He filed a petition for writ of certiorari before the United States Supreme Court, but certiorari was denied on April 15, 2019.

         While the petition for extraordinary relief was pending, in May 2018, Voss filed a petition for writ of coram nobis before the state court. Voss contended that he has expired his prison terms since his initial sentencing in 1996 (id. at 40, 42), and the state court did not have jurisdiction to conduct a new sentencing hearing. The state court denied the petition. Voss appealed. The Nevada Court of Appeals affirmed the state court's denial on May 17, 2019. The appellate court held that Voss's claims were outside the scope of a petition for writ of coram nobis as they did not involve errors of fact outside the record and he did not demonstrate that he could not have raised claims concerning the state court's failure to act upon its August 2001 order while he was in custody for the CR96-1581 sentence. Voss sought rehearing. The Nevada Court of Appeals denied his request in July 2019. He petitioned for review by the Nevada Supreme Court, but his request was denied, and a remittitur issued on September 30, 2019.

         Voss mailed a “Protective Petition” for Writ of Habeas Corpus (ECF No. 1) on July 17, 2019, and paid the five dollar ($5.00) filing fee. The Petition raises one ground for violations of his Fifth, Sixth, and Fourteenth Amendment rights to due process, equal protection, fair trial, speedy trial, and against double jeopardy. (Id. at 8.) Voss alleges that the state court lacks jurisdiction to enter an amended judgment because he served to completion each of the six disproportionate sentences imposed by the original judgment. (Id.) He further alleges the state court acted in excess of its jurisdiction by entering an order in August 2018 to move forward with resentencing proceedings and by resentencing him and entering an amended judgment on a future date. (Id. at 8-9.) The Petition leaves blank spots for the dates of resentencing and entry of an amended judgment. (Id. at 9.)

         In addition, the Petition states that Voss filed it “expressly for the purpose of preserving [his] federal right to habeas corpus review of an anticipated Amended Judgment of Conviction to be entered by the state trial court.” (Id. at 3 (underline emphasis omitted).) He claims he faces potential future jeopardy and restraints on his liberty as a direct result of the anticipated resentencing and entry of an amended judgment, even though he is not presently incarcerated pursuant to the November 1996 judgment.

         According to the state court's docket records, litigation related to Voss's resentencing is currently ongoing.

         III. ORDER TO SHOW CAUSE

         Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and order a response unless it “plainly appears” that the petitioner is not entitled to relief. See also Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably incredible, or false. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). The court may also dismiss claims at screening for procedural defects. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998).

         A statute of limitations begins to run on the date on which a “claim ‘accrues'.” Pouncil v. Titon, 704 F.3d 568, 573 (9th Cir. 2012). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year period of limitations for federal habeas petitions filed by state prisoners under 28 U.S.C. § 2254. A habeas claim accrues and the one-year limitation period begins to run from the latest of four possible triggering dates, with the most common being the date on which the petitioner's state court judgment became final by either the conclusion of direct appellate review or the expiration of time for seeking such review. 28 U.S.C. § 2244(d)(1)(A); Redd v. McGrath, 343 F.3d 1077, 1081-83 (9th Cir. 2003) (traditional rules of claim accrual apply to habeas proceedings). When a state court issues an amended judgment ...