Chirchick v. Williams et al

Filing 19

ORDER Denying 17 Emergency Motion for Temporary Restraining Order. A certificate of appealability is DENIED as to the 18 notice of appeal filed on November 14, 2012. Signed by Judge Gloria M. Navarro on 11/15/2012. (Copies have been distributed pursuant to the NEF; CC: Court of Appeals - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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MITCHELL ADAM CHIRCHICK,
Petitioner,

2:10-cv-00745-GMN-RJJ

vs.

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ORDER

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BRIAN E. WILLIAMS, et al.,

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Respondents.

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This closed habeas matter comes before the Court on petitioner’s motion (#17) for an

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emergency temporary restraining order (TRO) and further following upon the filing of an

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untimely notice of appeal (#18).
Background

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Petitioner Mitchell Chirchick sought to challenge his 2008 Nevada state conviction,

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pursuant to an Alford plea, of three counts of theft by obtaining money in excess of $2500 by

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material misrepresentation. The Court found that the petition failed to state a claim for relief

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and gave petitioner an opportunity to amend. After he failed to respond, the Court dismissed

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the action without prejudice.

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Petitioner thereafter moved for reconsideration on the ground that he did not receive the

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Court’s screening order. He stated that he did not sign for the order in the prison law library

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mail log. The Court directed respondents to respond with a redacted copy of the relevant

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portion of the mail log. The mail log reflected that petitioner signed for legal mail from the Clerk

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of this Court received only six days after the order in question. Petitioner had no then-pending

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open matters on the docket of this Court in which the Clerk transmitted a filing other than this

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action.

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Petitioner thereafter did not file a reply to respondents’ response.

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The Court accordingly denied the motion for reconsideration. The Court further noted

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that making such a false statement needlessly wastes limited judicial resources. It directed

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respondents’ counsel to 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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correctional major violation MJ48.1
TRO Motion

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Petitioner now seeks a temporary restraining order precluding state correctional officials

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from imposing disciplinary sanctions based upon a MJ48 violation, asserting that he will be

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irreparably injured by the imposition of such sanctions.

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Petitioner will have to challenge any disciplinary sanctions imposed through other state

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or federal proceedings as appropriate to the claim raised. This particular habeas action

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challenged petitioner’s 2008 state judgment of conviction. To the extent, if any, that petitioner

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arguendo may challenge the particular disciplinary conviction in question in a federal habeas

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proceeding, he, inter alia, must appropriately exhaust his state judicial remedies through to the

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Supreme Court of Nevada as to such a claim prior to bringing a – new and separate – federal

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habeas proceeding challenging the disciplinary conviction. He may not pursue any such

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challenge to the disciplinary conviction in this action, which was directed to the 2008 judgment

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of conviction and which has been closed by a final judgment. Petitioner’s conclusory assertion

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that he will sustain irreparable injury in the interim is frivolous and in any event begs the

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question, as this proceeding simply is not the proper proceeding for petitioner to pursue a

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challenge to the disciplinary conviction.

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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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The Court expresses no opinion otherwise as to any issues pertaining to petitioner’s

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challenge to the disciplinary conviction, including as to which particular state or federal

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proceedings might provide an appropriate vehicle for such a challenge. The Court holds only

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that the present proceeding is not an appropriate vehicle for such a challenge.
Consideration of Possible Issuance of a COA

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The Court will consider possible issuance of a certificate of appealability (COA) on an
arguendo assumption that a COA would be required in this particular procedural context.

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With deference to the final authority of the Court of Appeals with regard to matters

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concerning its jurisdiction, the notice of appeal (#18) clearly is untimely. The notice seeks to

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appeal the order (#15) denying petitioner’s motion for reconsideration. That order was entered

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on September 18, 2012. The notice of appeal was not mailed for filing until on or after

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November 8, 2012. Given that the notice of appeal was not constructively filed until more than

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thirty days after entry of the order in question, the notice of appeal is untimely.

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The Court therefore will deny a COA as to the untimely appeal. Jurists of reason in any

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event would not find the order to be debatable or wrong, given that the prison law library mail

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log demonstrated that petitioner based the motion for reconsideration on a false statement to

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the Court.

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IT THEREFORE IS ORDERED that the motion (#17) for an emergency temporary
restraining order is DENIED.

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IT FURTHER IS ORDERED that a certificate of appealability (COA) is DENIED as to

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the notice of appeal (#18) filed on November 14, 2012. The Clerk shall clearly note the denial

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of a COA in the docket entry for this order and shall forward a supplemental e-mail notice

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(NEF) of this order to the Court of Appeals.

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This action has been, and remains, closed.

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DATED this 15th day of November, 2012.

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_________________________________
Gloria M. Navarro
United States District Judge
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