Seay v. The State of Nevada

Filing 5

ORDER that the petition is DISMISSED without prejudice to the filing of an amended petition, in this action, correcting the deficiencies identified in this order within thirty (30) days of entry of this order, subject to extension. If an amended pet ition correcting the deficiencies identified herein is not timely filed, final judgment will be entered dismissing the action without further advance notice. Signed by Judge Kent J. Dawson on 1/23/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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TRACEY A. SEAY,
Petitioner,

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2:12-cv-00005-KJD-PAL

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vs.

ORDER

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THE STATE OF NEVADA,

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Respondent.

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This habeas matter under 28 U.S.C. § 2241 comes before the Court for initial review

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under Rules 1(b) and 4 of the Rules Governing Section 2254 Cases [the “Habeas Rules”].

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The filing fee has been paid.

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Petitioner seeks to preclude a pending Nevada state felony prosecution for driving

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under the influence (DUI) as constituting double jeopardy because he pled guilty to a

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misdemeanor DUI charge arising out of the same incident in the municipal court.

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The Court would note at the outset: (a) that petitioner properly is proceeding under 28

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U.S.C. § 2241 rather than 28 U.S.C. § 2254 because he is seeking pretrial intervention rather

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than challenging a judgment of conviction; (b) that petitioner is “in custody” for purposes of

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federal habeas jurisdiction in this context so long as he is obligated to appear in the state

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criminal proceedings, even if not in physical custody; (c) that abstention from potential federal

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intervention in the pending criminal proceeding is not required under Younger v. Harris, 401

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U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), because petitioner is challenging the

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proceeding on double jeopardy grounds, subject to the requirement that the claims presented

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have been fully exhausted in the state courts; and (d) that any merits review conducted in this

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matter will be de novo as to conclusions of law rather than under the deferential standard of

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review that would applicable under the Antiterrorism and Effective Death Penalty Act

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(AEDPA), because the matter arises under § 2241 rather than § 2254.1

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However, the petition is deficient in two key respects.

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First, petitioner did not name a proper respondent. The petition names the State of

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Nevada as the sole respondent. Petitioner may not name the State as a respondent. The

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state sovereign immunity recognized by the Eleventh Amendment prevents petitioner from

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proceeding directly against the State in federal court even in a habeas action. The Court

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expresses no opinion as to the appropriate respondent or respondents to be named in this

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context. The sole respondent named in the present petition, the State of Nevada, clearly is

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not a proper respondent due to state sovereign immunity.

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Second, to the extent that petitioner seeks to obtain relief under the Nevada

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Constitution in addition to the United States Constitution, the petition fails to state a claim

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upon which relief may be granted. Federal habeas relief is not available for alleged errors or

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violations of state law. See,e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-

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80, 116 L.Ed.2d 385 (1991). Federal habeas relief is available in this context only for

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violations of the United States Constitution.2

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See,e.g., Stow v. Murashige, 389 F.3d 880, 888 (9 th Cir. 2004)(double jeopardy challenge to pending
state crim inal prosecution arises under § 2241 rather than § 2254 and is subject to de novo review rather
than deferential review under AEDPA as to conclusions of law); Justices of Boston Municipal Court v. Lydon,
466 U.S. 294, 300-02, 104 S.Ct. 1805, 1809-10, 80 L.Ed.2d 311 (1984)(a defendant who has been released
on bail or on his own recognizance pending trial or appeal is in custody for purposes of habeas jurisdiction
under § 2241); Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992)(Younger abstention does not bar
federal pretrial intervention in a pending state crim inal proceeding based upon an alleged double jeopardy
violation, subject to the exhaustion requirem ent).
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In a related vein, counsel should note that, in term s of controlling jurisprudence, petitioner is not in
Nevada state court anym ore. Petitioner urges in the petition that decisions from other state and federal
courts are not binding in Nevada, and petitioner m aintains that the law in Nevada regarding double jeopardy
protection is well settled. #1, at 22. Petitioner now is in federal court. This Court is bound on federal law
issues by the decisions of the United States Suprem e Court and the Ninth Circuit Court of Appeals. The
decisions on federal law issues by all other state and federal courts – including the Nevada Suprem e Court –

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(continued...)
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The petition accordingly will be dismissed without prejudice to the filing of an amended
petition brought against a proper respondent or respondents.

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The Court additionally would note that -- while it may issue a writ of habeas corpus to

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preclude further prosecution if petitioner succeeds on the petition -- a federal district court is

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not a superior court to a state supreme court or state district court exercising a power of

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appellate review over those courts.3 This Court therefore under no circumstance will be

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issuing an order “reversing” state court decisions as prayed for in the petition. Federal

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habeas review is collateral review, not direct review. The flexibility of the writ of habeas

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corpus allows the district court to remedy or prevent a constitutional violation without the

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necessity of an order directly reversing an adverse state court decision, other than through

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an order, in this context, barring further prosecution. Cf. Mandi Timoteo v. City of Las Vegas,

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2:04-cv-00268-KJD-GWF, #11, at 14-15 (Dec. 13, 2006)(order granting a writ of habeas

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corpus barring further state prosecution on double jeopardy grounds).

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Finally, given that petitioner is represented by counsel, the Court will direct petitioner

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to attach copies of relevant state court record materials needed for further initial review of any

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amended petition filed. Counsel potentially may find the Federal Public Defender’s Office of

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assistance in identifying the technical logistics of how that office complies with a court order

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directing the filing of copies of state court record exhibits in the manner required by this order.

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(...continued)

constitute only persuasive, nonbinding authority. The decisions of the Suprem e Court of Nevada are binding
in this Court only as to state law issues, as the state suprem e court is the final arbiter of Nevada state law.
W hile petitioner also has provided extensive argum ent as to United States Suprem e Court case law, counsel
m ay wish to consider whether an apparent cut-and-paste of briefing to the state suprem e court adequately
takes into account: (a) that any state law violation does not provide a basis for federal habeas relief; and (b)
that Nevada state suprem e court precedent on federal law issues constitutes only persuasive rather than
binding authority on such questions now that petitioner is in federal court. Although the Court of course will
consider all apposite precedent directed to an issue, whether binding or not, the m ost effective (exhausted)
federal law argum ents in this federal district court necessarily will be those supported directly by apposite
controlling United States Suprem e Court and Ninth Circuit authority.
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Cf. Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S.Ct. 1517, 161 L.Ed.2d
454 (2005)(while otherwise lim ited in application, the Rooker-Feldman doctrine precludes a party who has
lost in state court litigation from seeking a federal district court order directly reversing the adverse state court
decision).

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IT THEREFORE IS ORDERED that the petition is DISMISSED without prejudice to the

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filing of an amended petition, in this action, correcting the deficiencies identified in this order

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within thirty (30) days of entry of this order, subject to extension. If an amended petition

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correcting the deficiencies identified herein is not timely filed, final judgment will be entered

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dismissing the action without further advance notice.

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IT FURTHER IS ORDERED, pursuant to Local Rule LR 15-1, that any amended

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petition filed must be complete in itself without reference to previously filed papers, i.e., as a

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complete, “stand alone” pleading. Thus, the claims and allegations that are stated in the

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amended petition will be the only matters remaining before the Court. Any claims or

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allegations that are left out of the amended petition or that are not re-alleged in the amended

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petition no longer will be before the Court.

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IT FURTHER IS ORDERED that, within the same period allowed for filing an amended

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petition, petitioner shall file exhibits including copies of the following: (a) complete minutes

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from the municipal court, justice court, and district court proceedings; (b) any and all charging

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instruments filed in the municipal court, justice court, and any district court proceedings,

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including all amendments thereto; (c) any and all municipal court records pertaining to

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petitioner’s plea in that court; (d) any and all motions and/or briefing filed in the justice court

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and/or district court on the double jeopardy issue; (e) any and all orders by the justice court

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and or district court regarding the merits of the double jeopardy issue; (f) any preliminary

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hearing transcript that has been prepared in the normal course of the justice court

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proceedings; (g) all briefing and papers filed in the Supreme Court of Nevada on the double

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jeopardy issue; and (h) all decisions by the state supreme court on the merits of the issue.

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Nothing herein requires the preparation of transcripts that have not been prepared in the

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ordinary course of the various state court proceedings, absent further order of this Court.

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Copies need not be certified by the state court clerk unless the authenticity, accuracy, or

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completeness of the a copy or copies submitted later is challenged.

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IT FURTHER IS ORDERED that the exhibits shall be filed with a separate index of

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exhibits identifying the exhibits by number. The CM/ECF attachments that are filed further
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shall be identified by the number or numbers of the exhibit(s) in the attachment. See,e.g. No.

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2:10-cv-01225-PMP-CWH, #30, et seq. The purpose of this provision is so that the Court and

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any reviewing court thereafter will be able to determine from the face of the electronic docket

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sheet which exhibits are filed in which attachments. In other words, counsel shall not leave

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it to this Court or a reviewing court to “fish” through unmarked attachments on the electronic

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docket sheet looking for particular exhibits. Attempted physical filing of a CD, DVD, or other

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data storage device with electronic copies of the record exhibits is not permitted by this order.

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The exhibits instead must be filed in the manner described herein and as in the example

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identified herein. Given the anticipated relatively small volume of the exhibits, there is

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no need to send a hard copy courtesy copy of the exhibits to the Clerk or otherwise to

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chambers. The Court will review the materials from the electronic docket sheet.

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DATED: January 23, 2012

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_________________________________
KENT J. DAWSON
United States District Judge

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