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Miller v. State

United States District Court, D. Nevada

November 21, 2019

CLIFFORD WAYNE MILLER, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

          ORDER

          MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This 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.[1] 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.

         II. BACKGROUND[2]

         Petitioner, 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.[3]

         In 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”).

         III. ORDER TO AMEND PETITION AND 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. 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. 1998).

         Here, 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.

         Second, 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.”[4]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 respondent.

         Third, 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).

         Based 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.

         In 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.

         In 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.[5] 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 explained, ...


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