United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
habeas matter is before the Court for an initial review under
the Rules Governing Section 2254 Cases of Petitioner Clifford
Miller's petition for writ of habeas corpus (ECF No. 1-1)
pursuant to 28 U.S.C. § 2254. For the reasons discussed
below, the Court directs Petitioner to file an amended
petition and show cause in writing why certain claims should
not be dismissed as unexhausted.
a pro se Nevada state prisoner, initiated this case
on November 7, 2019, by filing the petition, which challenges
a 2006 conviction and sentence imposed by the Sixth Judicial
District Court for Humboldt County (“state
court”). The state court entered a judgment of
conviction, pursuant to a jury verdict, on two counts of
first-degree murder with use of a deadly weapon and sentenced
Petitioner to two consecutive life sentences without the
possibility of parole. The Nevada Supreme Court affirmed the
conviction on direct appeal in February 2009.
January 2010, Petitioner filed a state petition for writ of
habeas corpus (“state petition”) seeking
post-conviction relief. Following an evidentiary hearing, the
state petition was denied. Petitioner appealed. The Nevada
Supreme Court affirmed the state court's denial of relief
in October 2019 (“PCR appeal”).
ORDER TO AMEND PETITION AND SHOW CAUSE
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.
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). Courts
may dismiss claims at screening for procedural defects.
Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.
Petitioner has not properly commenced this action as the
petition is subject to multiple substantial defects. First,
Petitioner's hand-written petition is not sufficiently
legible or organized to enable the Court or any opposing
party to fully understand it. See LR IA 10-1(a)(2)
(“Handwriting must be legible….”). Some of
the writing is too small to read because Petitioner attempted
to fit a large amount of information in a small space or
wrote in between the lines. The Court accepts handwritten
documents and pleadings, but they must be neatly written to
allow the Court and opposing parties to easily read and
understand the content. Illegible or unintelligible filings
may be stricken from the Court's docket without prejudice
to resubmitting clear and readable filings. See LR
IA 10-1(d). Although there “is no rule regarding the
precise manner in which claims must be organized in a federal
habeas petition, ” a petitioner may be directed to
better organize his claims in an amended petition where the
initial organization of the claims is especially confusing,
rendering unclear what claims the petitioner means to assert.
See Homick v. Baker, No. 3:99-cv-0299-PMP, 2012 WL
5304781, at *1 (D. Nev. Oct. 25, 2012). It appears that
multiple grounds in Petitioner's petition alleging
ineffective assistance of counsel (“IAC”) may be
duplicates. (ECF No. 1-1, compare Grounds 1-2
with Grounds 17-20.) Petitioner is thus directed to
file an amended petition within 30 days of this order that is
(i) either type-written or hand-written in a more legible
fashion, and (ii) sufficiently organized to avoid duplicative
claims and allow for proper screening.
Petitioner has erroneously named the State of Nevada as the
respondent. That is incorrect. Rule 2(a) states that, when a
petitioner is “in custody under a state-court judgment,
the petition must name as respondent the state officer who
has custody.”Failure to name the proper respondent
strips the district court of personal jurisdiction. Smith
v. Idaho, 392 F.3d 350, 354 (9th Cir. 2004);
Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.
1996). As such, an amended petition must name the correct
Petitioner has not alleged or demonstrated that he fully
exhausted his state court remedies for each claim. Pursuant
to 28 U.S.C. § 2254(b)(1)(A), a state prisoner seeking
habeas corpus relief in federal court must first exhaust
available state court remedies before presenting his claims
in the federal court. The exhaustion requirement ensures that
the state courts, as a matter of federal-state comity, will
have the first opportunity to pass upon and correct alleged
violations of federal constitutional guarantees. Coleman
v. Thompson, 501 U.S. 722, 731 (1991). To satisfy the
exhaustion requirement, a petitioner must fully and fairly
present his claims to the state courts. Woods v.
Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). A claim
must be raised through one complete round of either direct
appeal or collateral proceedings to the highest state court
level of review available. O'Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999); Peterson v.
Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc).
In the state courts, the petitioner must refer to the
specific federal constitutional guarantee he believes has
been violated, and he must state the facts that he claims
entitle him to relief on the federal constitutional claim.
Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000).
Fair presentation requires the petitioner to present the
state courts with both the operative facts and the federal
legal theory upon which the claim is based. Castillo v.
McFadden, 399 F.3d 993, 999 (9th Cir. 2005).
on the Nevada Supreme Court's appellate decisions, of
which the Court takes judicial notices, it appears likely
that Petitioner's petition is partially unexhausted and
subject to partial dismissal without prejudice.
Ground 3, Petitioner alleges prosecutorial misconduct because
the prosecutor purportedly inflamed the passions of the jury,
improperly used of the word “murder, ” and
elicited confusing and irrelevant expert testimony. (ECF No.
1-1 at 9-11.) The statement of exhaustion indicates he did
not raise this claim in the direct appeal or PCR appeal.
(Id. at 11.) A review of the Nevada Supreme
Court's appellate decisions also suggests this claim was
not presented through one full round of either direct appeal
or collateral proceedings.
Grounds 17-20, Petitioner alleges various IAC claims.
(Id. at 42-55.) The statements of exhaustion for
each claim represents that they were raised on direct appeal.
However, the Nevada Supreme Court's February 2009
decision does not support Petitioner's
assertion. He further represents that certain IAC
claims were (i) raised in his PCR appeal, (ii) not
raised in his PCR appeal, or (iii) he fails to indicate
whether a claim was raised in his PCR appeal. As previously