Crutcher v. Nevada Parole Commissioners et al

Filing 32

ORDER denying without prejudice Petitioner's 30 Motion to Amend. Amended Petition to be filed within 14 days of this Order. Signed by Judge Kent J. Dawson on 6/26/12. (Copies have been distributed pursuant to the NEF - ECS, forms to Petitioner)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BYRON ELROY CRUTCHER,
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Petitioner,

2:09-cv-00801-KJD-GWF

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vs.
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ORDER
NEVADA PAROLE COMMISSIONERS, et
al.,

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Respondents.
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This habeas matter comes before the Court on the pro se petitioner’s motion (#30) to
amend the petition.

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The proposed amended petition tendered with the motion is deficient, and the motion

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therefore will be denied without prejudice. Petitioner (a) did not sign the proposed amended

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petition; (b) did not verify the pleading; (c) did not complete the exhaustion inquiries; and (d)

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sought to incorporate material from the accompanying motion to amend, as a supporting

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memorandum, to state his claims for relief.

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Petitioner must present a filing-ready proposed pleading. That means, inter alia, the
proposed pleading must be both signed and verified.

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The exhaustion inquiries must be responded to, in full. There is a substantial question

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in this case as to whether petitioner’s claims were fairly presented to and exhausted in the

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Supreme Court of Nevada. Petitioner therefore must identify – by the Supreme Court of

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Nevada docket number – the specific proceedings in the state supreme court in which he

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presented the claim or claims in the amended petition, on appeal or otherwise.

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Further, petitioner may not incorporate other documents or filings within the amended

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petition to state his claims. Under Local Rule LR 15-1, the amended petition must be

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complete in itself. Petitioner thus must state his claims within the amended petition itself,

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without incorporation of other papers. See #29, at 2. The accompanying motion to amend

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is a motion for leave to amend, not a memorandum in support of the claims in the petition.

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The Court further notes that petitioner states in the motion to amend with regard to the

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withdrawal of federal habeas counsel, on the one hand, that “she and I decided the best

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course of action was for her to withdraw,” and, on the other, “that I did not tell her to

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withdraw[,] see did that on her own knowing those were her intentions the entire time.”

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Petitioner maintains that counsel “just did not want to do the case, thus, she knew telling me

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my claims were meritless would end in her not representing me any longer.”1

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Petitioner presented this Court with a motion to withdraw counsel and to proceed in

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proper person. The motion was signed by counsel and personally by petitioner himself. If

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petitioner had an issue with counsel’s withdrawal, it was incumbent upon him to raise it prior

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to the motion, rather than personally signing a motion that explicitly requested “that this Court

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grant the Motion to Withdraw as Counsel and allow Petitioner to proceed in proper person.”2

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It is too late in the life of this case for such half-measures and indirection. It is too late

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in the life of this case for petitioner – an experienced pro se litigator in this Court – to be

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presenting unsigned, unverified and only partially completed proposed pleadings. It is too late

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#30, at 13.

Following a dozen years on the federal bench, the undersigned can state only that the proposition
that an assistant federal public defender in this District would in essence dum p a habeas petitioner with a
m eritorious case strains credulity to the extrem e. If petitioner – who no longer is in physical custody –
believed that the assistant federal public defender assigned to his case im properly advised him that his case
had no m erit because she “just did not want to do the case,” he was not without recourse within the
supervisory structure of the Federal Public Defender’s Office. An assistant federal public defender is
supervised both by the First Assistant Federal Public Defender as well as the Federal Public Defender
him self. Nothing under the sun is im possible. However, it would be a first in this Court’s experience to
encounter a m eritorious habeas case where an assistant with the Federal Public Defender did anything other
than zealously pursue the m atter. In all events, it was incum bent upon petitioner, an experienced pro se
litigator in this Court, to raise and pursue any such concerns prior to personally signing on to a m otion to
withdraw counsel and proceed in proper person.

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in the life of this case for petitioner to personally sign a motion to withdraw counsel and

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proceed in proper person and then go back and seek to impugn the propriety of the relief that

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he personally requested, over his own signature.

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The Court will give petitioner fourteen days to present a motion to amend with a

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properly-completed proposed amended petition. If he fails to do so timely, the matter will

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proceed to disposition on the previous pleadings on file.

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IT THEREFORE IS ORDERED that petitioner’s motion (#30) to amend is DENIED
without prejudice.

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IT FURTHER IS ORDERED that petitioner shall have fourteen (14) days from entry

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of this order within which to file a motion for leave to amend with a properly-completed

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proposed amended petition that, in addition to all other requirements: (a) is signed; (b) is

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verified; (c) includes responses to all exhaustion inquiries, specifically identifying by docket

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number the proceedings in the Supreme Court of Nevada in which petitioner contends his

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claims were exhausted, on an appeal or otherwise; and (d) is complete in itself without

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incorporation of other documents. No extensions of time will be granted.

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IT FURTHER IS ORDERED that petitioner shall clearly title the proposed amended

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petition as an amended petition by placing the word "AMENDED" immediately above "Petition

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for a Writ of Habeas Corpus" on page 1 in the caption and shall place the docket number,

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2:09-cv-00801-KJD-GWF, above the word "AMENDED." Under Local Rule LR 15-1, the

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amended petition must be complete in itself without incorporation of other pleadings or

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papers. Thus, if leave to amend is granted, the claims that are stated in the amended petition

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will be the only matters remaining before the Court. Any claims or allegations that are left out

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of the amended petition or that are not re-alleged therein no longer will be before the Court.

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The Clerk shall provide the pro se petitioner two copies of a noncapital habeas petition

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form along with the service copy of this order.
DATED:

June 26, 2012

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___________________________________
KENT J. DAWSON
United States District Judge
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