United States District Court, D. Nevada
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
...