Chirchick v. Williams et al

Filing 15

ORDER Denying 8 Motion for Reconsideration. FURTHER ORDERED that, within 14 days of entry of this order, respondents' counsel shall file a notice that the matter has been referred to the appropriate officers within the state corrections department for investigation of a possible violation of MJ48. Signed by Judge Gloria M. Navarro on 9/17/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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MITCHELL ADAM CHIRCHICK,
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Petitioner,

2:10-cv-00745-GMN-RJJ

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vs.
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ORDER
BRIAN E. WILLIAMS, et al.,
Respondents.

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This closed habeas matter comes before the Court on petitioner’s motion (#8) for

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reconsideration, styled as a petition for rehearing, which was filed within the time period for

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seeking relief under Rule 59 of the Federal Rules of Civil Procedure.

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In the original petition herein, petitioner Michell Chirchick sought to challenge his 2008

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Nevada state conviction, pursuant to an Alford plea, of three counts of theft by obtaining

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money in excess of $2500 by material misrepresentation.

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In an April 27, 2011, order, the Court found that the original petition failed to allege

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claims with sufficient specificity to state a claim for relief. The Court gave petitioner an

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opportunity to file an amended petition stating sufficiently specific claims for relief. The Court

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further directed petitioner to attach copies of additional state court record materials required

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by the petition form and/or relevant to further screening. The order stated that “[t]his action

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will be dismissed without further advance notice if petitioner fails to fully and timely comply

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with this order.”

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No amended petition was filed thereafter. Accordingly, on January 24, 2012, final
judgment was entered dismissing the action without prejudice.

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Petitioner thereafter moved for reconsideration on the ground that he never received

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the April 27, 2011, order in the first instance. He stated in the unsworn motion: “I was never

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called, nor does my signature appear in the legal mail ledger,” referring to the legal mail log

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or ledger at the Southern Desert Correctional Center (“Southern Desert”) prison law library.

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See #8.

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The Court directed respondents to respond to the motion and provide either an

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appropriately redacted copy of the relevant portion of the prison mail log or a declaration by

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the records custodian that there were no relevant entries in the log.

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The mail log reflects that petitioner Mitchell Chirchick signed for legal mail from the

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Clerk of this Court received on May 3, 2011, only six days after the April 27, 2011, order in

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question. Mr. Chirchick had no then-pending open matters on the docket of this Court in

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which the Clerk transmitted a filing other than this action.

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Petitioner has not filed a reply to the respondents’ response within the time allowed by
the Court’s prior order. See #10, at 2.

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It thus appears that petitioner’s statement to this Court that he did not sign for receipt

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of a copy of the Court’s April 27, 2011, order is belied by the prison law library mail log, which

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reflects instead that he did so.

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The motion for reconsideration therefore will be denied.

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When a litigant makes a false statement to the Court, limited judicial resources are

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needlessly wasted, as well as those of the adverse parties called upon to respond. The fact

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that petitioner lied to the Court in an unsworn motion does not insulate him from possible

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penalty.

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Under major violation MJ48 of the Nevada state corrections department's
administrative regulations, a major violation may be committed by the following:
Any violation of the Rules of Court, contempt of court,
submission of forged or otherwise false documents, submissions
of false statements, violations of Rules of Civil Procedure and/or
receiving sanctions and/or warnings for any such actions from
any court. Although not necessary for disciplinary purposes, any
Order from any court detailing such action shall be sufficient
evidence for disciplinary purposes.
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Lying to a court, again, wastes limited resources. It will not be tolerated by this Court.

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The Court will direct respondents’ counsel to file a notice within fourteen days of entry of this

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order that the matter has been referred to the appropriate officers within the state corrections

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department for investigation of a possible violation of MJ48. Nothing in this order precludes

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state authorities from pursuing other appropriate sanctions based upon the record in this

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matter over and above those available for a violation of MJ48.
IT IS THEREFORE IS ORDERED that petitioner’s motion (#8) for reconsideration is

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DENIED.

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IT FURTHER IS ORDERED that, within fourteen (14) days of entry of this order,

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respondents’ counsel shall file a notice that the matter has been referred to the appropriate

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officers within the state corrections department for investigation of a possible violation of

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MJ48.

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DATED this 17th day of September, 2012.

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_________________________________
Gloria M. Navarro
United States District Judge

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