Brown v. Neven et al

Filing 2

ORDER Dismissing 1 Petition for Writ of Habeas Corpus without prejudice with leave to Amend within 30 days. Signed by Judge Miranda M. Du on 04/10/2013. (Copies have been distributed pursuant to the NEF - CC: 5 Copies of Petition Form, Instructions, and filed 1 Writ of Habeas Corpus to Petitioner - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CORNELIUS BROWN,

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Petitioner,

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Case No. 2:12-cv-00922-MMD-GWF
ORDER

v.
DWIGHT NEVEN,

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Respondents.

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This habeas action comes before the Court for initial review of the petition

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pursuant to Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been

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paid.

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Petitioner Cornelius Brown seeks to set aside his 2009 Nevada state conviction,

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pursuant to a jury verdict, of three counts of lewdness with a minor under the age of 14

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and five counts of sexual assault of a minor under the age of 14.

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On initial review, the petition is subject to multiple deficiencies.

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First, the petition fails to state a claim upon which relief may be granted.

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Habeas pleading is not notice pleading, and a habeas petitioner must state the

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specific facts that allegedly entitle him to habeas relief. See Mayle v. Felix, 545 U.S.

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644, 655-56 (2005). Even under the more liberal notice pleading standard applicable to

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general civil actions, conclusory assertions that constitute merely formulaic recitations of

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the elements of a cause of action and that are devoid of further factual enhancement do

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not state a claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 677-81 & 686 (2009).

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Accordingly, even under the more liberal notice pleading rules, the allegations of a

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pleading must “permit the court to infer more than the mere possibility” that a

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constitutional violation has occurred. 556 U.S. at 679. The stricter habeas pleading

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rules similarly require more than “mere conclusions of law, unsupported by any facts.”

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Mayle, 545 U.S. at 655. A habeas petitioner instead must “state facts that point to a

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real possibility of constitutional error.” Id.

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In the present case, petitioner presents what appear to be up to fifteen different

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claims in three grounds. All of the claims are set forth in a conclusory fashion that fail to

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state a claim upon which relief may be granted under the foregoing standards. For

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example, the bare allegation within Ground 1 that “the district court err [sic] in denying

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the motion to continue the trial” presents only a mere conclusion of law, unsupported by

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any facts. Similarly, the conclusory allegation in Ground 1 that the African-American

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petitioner was deprived of a jury of his peers because his jury “was [a] predominately

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white Jim Crow south1 lynch mob” fails to state a claim. A bare allegation that an

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African-American defendant was tried before a mostly white jury, without more, does not

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state a viable constitutional claim. In this same vein, petitioner’s allegation in Ground 3

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that “these fact Louisiana2 lynch mobs [are] adjudicating black men without due process

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of law . . . and the equal protection of law” does not state a claim.

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All of the up to fifteen different claims in the petition are subject to this same

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deficiency, presenting only conclusory allegations that fail to state a claim upon which

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relief may be granted. The allegations presented fail to set forth any specific factual

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allegations that would point to a real possibility of constitutional error and thus fail to

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state specific facts that allegedly would entitle petitioner to habeas relief. Petitioner

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must allege specific allegations of actual fact, not mere conclusions of law.

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Second, petitioner did not follow the instructions for the petition form regarding
the presentation of multiple claims.
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Petitioner was tried in Las Vegas, Nevada.
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See note 1.
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Petition Form Instruction No. (C)(6) states, with the following emphasis: “YOU

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MAY ALLEGE THE VIOLATION OF ONLY ONE CONSTITUTIONAL RIGHT PER

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GROUND.” Petitioner therefore may not combine multiple constitutional claims in a

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single ground. In the present petition, Brown asserts up to eight different constitutional

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claims in Ground 1, three different claims in Ground 2, and four different claims in

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Ground 3. Petitioner instead must allege only one constitutional violation per ground.

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In order to add grounds after Ground 3 in the petition form, petitioner must strike out the

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ground number on an extra copy of the pages from the petition form, then write in the

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particular ground number needed, e.g., Ground 4, and then insert the completed pages

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along with the other grounds in the petition.

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Third, petitioner did not comply with the following instruction on the first page of

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the petition form: “Attach to this petition a copy of all state court written decisions

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regarding this conviction.” Petitioner did not attach any such decisions with the petition,

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although he pursued a direct appeal and a state post-conviction petition.

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The petition accordingly will be dismissed without prejudice for failure to state a

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claim upon which relief may be granted, with an opportunity to amend and correct the

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deficiencies identified in this order.

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IT IS THEREFORE ORDERED that the petition is DISMISSED without prejudice

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for failure to state a claim upon which relief may be granted, subject to leave to amend

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within thirty (30) days of entry of this order to correct the deficiencies in the petition, if

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possible.

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IT IS FURTHER ORDERED that petitioner shall clearly title any amended petition

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filed in response to this order as an amended petition by placing the word "AMENDED"

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immediately above "Petition for a Writ of Habeas Corpus" on page 1 in the caption and

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shall

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"AMENDED." Under Local Rule LR 15-1, the amended petition must be complete in

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itself without reference to previously filed papers. Thus, the claims and allegations that

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are stated in the amended petition will be the only matters remaining before the Court.

place

the

docket

number,

2:12-cv-00922-MMD-GWF,

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above

the

word

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Any claims or allegations that are left out of the amended petition or that are not re-

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alleged therein no longer will be before the Court.

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IT IS FURTHER ORDERED that petitioner shall present only one constitutional

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claim per ground. If petitioner again combines multiple constitutional claims in a single

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ground, all constitutional claims after the first claim alleged in the ground will be stricken

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for failure to follow the petition instructions and the order of this Court.

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IT IS FURTHER ORDERED that petitioner shall attach with the amended petition

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copies of all state court written decisions regarding the conviction, including copies of

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the state supreme court’s decision on direct appeal; the findings, conclusions and order

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of the state district court on state post-conviction review; and the state supreme court’s

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decision on the post-conviction appeal.

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If plaintiff does not timely mail an amended petition to the Clerk for filing, a final

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judgment dismissing this action will be entered without further advance notice. If the

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amended petition does not correct the deficiencies identified in this order and otherwise

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does not state a claim upon which relief may be granted, a final judgment dismissing

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this action will be entered.

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The Clerk of Court shall send petitioner five copies of a noncapital § 2254 petition

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form together with one copy of the instructions for same along with a copy of the petition

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that he submitted.

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DATED THIS 10th day of April 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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