United States District Court, D. Nevada
ORDER DISMISSING ACTION
P. GORDON, UNITED STATES DISTRICT JUDGE.
Matthew Houston filed an application to proceed in district
court without prepaying fees or costs. ECF No. 6. I grant the
application because he is not able to pay the filing fee.
also filed an amended petition. ECF No. 11. I reviewed it
under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. The amended petition is
without merit so I deny it.
first two grounds are a request for tolling. Houston alleges
that he is on parole in Iowa. He also alleges that a hearing
in the Eighth Judicial District Court of the State of Nevada
was scheduled to occur on November 26, 2019. Houston dated
his petition November 14, 2019, but the court did not receive
it until December 2, 2019. These grounds are without merit
for at least three reasons. First, the hearing in the state
court had occurred before this court received the petition,
so I can do nothing. Second, to the extent Houston is asking
this court to intervene in the state court criminal
proceedings, this court is obligated to abstain. See
Younger v. Harris, 401 U.S. 37, 45-46 (1971). Third, to
the extent Houston is asking for tolling of the federal one-
year period of limitation under 28 U.S.C. § 2244(d)(1),
he filed the amended petition within one year of the finality
of the judgment of conviction,  and thus tolling is not needed.
ground 3, Houston claims that he recently discovered that on
December 28, 2019, he was charged with having an open
container of alcohol in a motor vehicle, not driving under
the influence. December 28, 2019 has not yet occurred. I
assume Houston meant an earlier date. I take judicial notice
of the docket of the Las Vegas Justice Court in State v.
Houston, No. 17F00474X,  and the docket of the Eighth
Judicial District Court of the State of Nevada in State
v. Houston, No. C-17-323614-1. Houston might have
originally been charged with an open-container violation-the
state-court dockets do not show it-but in the justice court
the charges eventually were felony driving under the
influence, misdemeanor speeding, and misdemeanor operation of
a vehicle with expired plates. The addition of more severe
charges after the initial charging does not violate the
ultimately Houston pleaded guilty to felony driving under the
influence in the state district court. That guilty plea is a
break in the proceedings. Even if the addition of charges
beyond the open-container violation somehow were to violate
the Constitution, Houston may not use habeas corpus to raise
claims of constitutional violations that occurred before
entry of the plea. See Tollett v. Henderson, 411
U.S. 258, 266-67 (1973). Because the claimed violation
occurred before entry of the guilty plea, Houston now may not
present that claim in habeas corpus. Ground 3 is without
jurists would not find my decisions here to be debatable or
wrong. I will not issue a certificate of appealability.
also filed a motion for the recognition of cognizability
within all complaints and a motion for conjunction and
relief. ECF Nos. 7, 8. It appears he wants to consolidate all
of his existing cases into one. These motions are moot
because I am dismissing this action.
Houston filed a motion for appointment of counsel. ECF No.
10. The amended petition lacks merit, and thus I will not
THEREFORE ORDER that the application to proceed without
prepaying fees or costs (ECF No. 6) is
GRANTED. Houston need not pay the filing fee.
FURTHER ORDER that the motions for recognition of
cognizability within all complaints (ECF No.
7) and for conjunction and relief (ECF No.
8) are DENIED as moot.
FURTHER ORDER that the motion for appointment of counsel
(ECF No. 10) is DENIED I FURTHER ORDER that
the amended petition for a writ of habeas corpus (ECF
No. 11) is DENIED. The clerk of the court shall
enter judgment accordingly and close this action.
FURTHER ORDER that a certificate of ...