United States District Court, D. Nevada
M. NAVARRO UNITED STATES DISTRICT JUDGE.
represented by retained counsel, has submitted a petition for
a writ of habeas corpus. The court will serve the petition
upon respondents for a response, with a few notes.
alleges that on May 11, 2008, he was a 14-year old minor.
That date, he was arrested for an assault. He further alleges
that on June 11, 2008, he was convicted in state district
court as an adult for the offense of battery with substantial
bodily injury. Petitioner raises four claims for relief,
all related to his adjudication as an adult. Petitioner also
claims that because of the conviction, he is ineligible for
Deferred Action for Children of Aliens and for Cancellation
it appears that this court lacks jurisdiction. Under the law
as it existed at the time, battery with substantial bodily
injury is a category C felony. Nev. Rev. Stat. §
200.481(2)(b) (2005). The punishment for a category C felony
is imprisonment for a minimum term of not less than one year
and for a maximum term of not more than five years. Nev. Rev.
Stat. § 193.130(2)(c). Even if the state district court
imposed the greatest possible sentence, and even if
petitioner received no credits to reduce his sentence, that
sentence would have expired no later than June 2013. It
appears that petitioner no longer is in custody pursuant to
the state-court judgment of conviction. See 28
U.S.C. § 2254(a). Petitioner might be suffering collateral
immigration consequences, but those collateral consequences
do not satisfy the jurisdictional requirement of custody.
Resendiz v. Kovensky, 416 F.3d 952, 956-58 (9th
Cir.2005), abrogated on other grounds by Chaidez v.
United States, 568 U.S. 342 (2013).
it appears that this action is untimely. The judgment of
conviction was entered on or around June 11, 2008. Petitioner
had one year from the date that the judgment of conviction
became final to file a federal habeas corpus petition. 28
U.S.C. § 2244(d)(1)(A). Petitioner does not allege that
he appealed the judgment of conviction, and the court cannot
find any record of an appeal with the Nevada Supreme Court.
Petitioner also does not allege that he pursued a
post-conviction habeas corpus petition in the state courts,
and thus he would not be eligible for statutory tolling under
28 U.S.C. § 2244(d)(2). It appears that the one-year
period expired on or around June 11, 2009, around ten years
before petitioner commenced this action.
THEREFORE IS ORDERED that the clerk file the petition,
currently in the docket at ECF No. 1-1.
FURTHER IS ORDERED that the clerk shall add Aaron Ford,
Attorney General for the State of Nevada, as counsel for
FURTHER IS ORDERED that the clerk shall electronically serve
upon respondents a copy of the petition (ECF No. 1).
FURTHER IS ORDERED that respondents shall file a response to
the amended petition, including potentially by motion to
dismiss, within sixty (60) days of service of an amended
petition and that petitioner may file a reply within thirty
(30) days of service of an answer. The response and reply
time to any motion filed by either party, including a motion
filed in lieu of a pleading, shall be governed instead by
Local Rule LR 7-2(b).
FURTHER IS ORDERED that any procedural defenses raised by
respondents to the counseled amended petition shall be raised
together in a single consolidated motion to dismiss. In other
words, the court does not wish to address any procedural
defenses raised herein either in serial fashion in multiple
successive motions to dismiss or embedded in the answer.
Procedural defenses omitted from such motion to dismiss will
be subject to potential waiver. Respondents shall not file a
response in this case that consolidates their procedural
defenses, if any, with their response on the merits, except
pursuant to 28 U.S.C. § 2254(b)(2) as to any unexhausted
claims clearly lacking merit. If respondents do seek
dismissal of unexhausted claims under § 2254(b)(2): (a)
they shall do so within the single motion to dismiss not in
the answer; and (b) they shall specifically direct their
argument to the standard for dismissal under §
2254(b)(2) set forth in Cassett v. Stewart, 406 F.3d
614, 623-24 (9th Cir. 2005). In short, no procedural
defenses, including exhaustion, shall be included with the
merits in an answer. All procedural defenses, including
exhaustion, instead must be raised by motion to dismiss.
FURTHER IS ORDERED that, in any answer filed on the merits,
respondents shall specifically cite to and address the
applicable state court written decision and state court
record materials, if any, regarding each claim within the
response as to that claim.
FURTHER IS ORDERED that, notwithstanding Local Rule LR IC
2-2(g), paper copies of any electronically filed exhibits
need not be provided to chambers or to the staff attorney,
unless later directed by the court.