Pough v. Gillespie et al

Filing 24

ORDER Granting 1 and 12 Applications for Leave to Proceed in forma pauperis. Show Cause Response due within 30 days. Signed by Judge James C. Mahan on 12/11/2013. (Copies have been distributed pursuant to the NEF; CC: Hon.Carolyn Ellsworth, District Judge - SLR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

7
8
9

JERRY D. POUGH,
Petitioner,

10

2:13-cv-00644-JCM-NJK

11
vs.

ORDER

12
13

DOUG GILLESPIE, et al.,

14

Respondents.

15
16

This habeas matter under 28 U.S.C. § 2241 comes before the court on petitioner’s

17

applications (## 1 & 12) to proceed in forma pauperis and for initial review under Rules 1(b)

18

and 4 of the Rules Governing Section 2254 Cases. The court finds that petitioner is unable

19

to pay the filing fee and therefore will grant the pauper applications. Turning to initial review,

20

petitioner seeks to restrain his pending Nevada state criminal prosecution for murder. On

21

initial review, it appears that all habeas claims in the petition are wholly unexhausted, that the

22

petition is barred under the abstention doctrine in Younger v. Harris, 401 U.S. 37 (1971), and

23

that the petition also includes jail conditions claims that are not cognizable in a federal habeas

24

corpus proceeding. Petitioner therefore must show cause in writing why the petition should

25

not be dismissed without prejudice.
Background

26
27
28

The papers on file and the online dockets of the state district court and state supreme
court reflect the following.

1

Petitioner Jerry Pough has been charged in Nevada state court pursuant to an

2

indictment with murder with the use of a deadly weapon. Trial in No. C-12-281031-1 in the

3

state district court is scheduled for February 3, 2014, as a firm setting.

4

Pough currently is representing himself in the state criminal proceedings, per his

5

request. Pough moved to stay his trial pending the outcome of the present federal habeas

6

action, which motion the state district court denied on July 10, 2013. This action by the state

7

district court is in full accord with this court’s subsequent statement regarding the effect of the

8

pending federal proceedings. The court stated in its August 22, 2013, order: “Nothing in

9

either this court’s order or the mere pendency of this action in any manner restrains the state

10

courts from proceeding in the pending criminal prosecution.” #16, at 3.

11

In federal court, petitioner has submitted a 272-page entirely handwritten petition under

12

28 U.S.C. § 2241 seeking, in the main, to restrain the pending state criminal proceedings.

13

While lengthy, the petition includes allegations that despite their length nonetheless are

14

merely conclusory recitals of pseudo-legal jargon. Further, each ground includes what are

15

in truth multiple distinct constitutional claims that are combined together within the single

16

ground and then repeated thereafter multiple times in later grounds. The petition therefore

17

presents a multiplicity of overlapping repetitive constitutional claims that, while prolix, in truth

18

lack specificity and could be stated in a much shorter and focused document.1

19

Against that backdrop, the eight grounds present, inter alia, the following claims.

20

Ground 1 includes a due process claim alleging that the state criminal proceedings are

21

arbitrary, oppressive and unjust. The ground includes allegations regarding a wide range of

22

alleged constitutional violations concerning, inter alia, the competency determination, the right

23

to self-representation, pretrial delay and sufficiency of the evidence.

24
25
26
27
28

1

At this juncture, the court has not granted petitioner’s motion for leave to file a petition with excess
pages. The petition appears to be subject to dismissal without prejudice on its face, and it further appears
that petitioner is seeking to use the mere pendency of this federal habeas proceeding to retard the progress
of the state criminal proceeding. The more appropriate course would be to defer any order to amend the
petition on the required § 2241 form – and with far, far less prolix albeit conclusory allegations – until after the
court has considered whether the petition should be dismissed on its face on this show-cause inquiry.

-2-

1

Ground 2 includes a due process claim alleging, inter alia, impropriety in the

2

competency proceedings, denial of the right to self-representation, an allegedly defective

3

Marcum notice of the grand jury proceedings, denial of discovery, denial of access to the

4

courts and alleged ineffective assistance of counsel.

5
6

Ground 3 seeks to assert a speedy trial claim, but it also includes similar rambling,
repetitive and overlapping constitutional claims based on other alleged errors.

7

Ground 4 seeks to assert claims of ineffective assistance of standby counsel, but it

8

also includes similar rambling, repetitive and overlapping constitutional claims based on other

9

alleged errors.

10

Ground 5 seeks to assert a fourth amendment claim challenging a prior probable cause

11

determination, but it also includes similar rambling, repetitive and overlapping constitutional

12

claims based on other alleged errors, such as an alleged denial of discovery.

13

Ground 6 refers initially to an eighth amendment prohibition on excessive bail but then

14

seeks to raise multiple claims under the eighth amendment regarding the conditions of

15

petitioner’s confinement in the Clark County Detention Center while awaiting trial, such as the

16

quality of the food at the jail.

17
18
19
20

Ground 7 includes claims of ineffective assistance of counsel, while again repeating
prior allegations regarding alleged court errors.
Ground 8 largely repeats prior allegations under the rubric of an equal protection
clause claim.

21

No potentially viable double jeopardy claim is presented in the 272-page petition.

22

Petitioner has not pursued any of his claims challenging his state criminal prosecution

23

in the state courts through to a decision on the merits by the state supreme court. The only

24

proceeding pursued by petitioner in the state supreme court, in No. 62336, concerns a

25

different state district court matter where the court granted a judicial marshal’s petition for

26

blood draws to rule out communicable disease after an incident involving petitioner. That

27

proceeding: (a) does not fairly present claims challenging the state criminal prosecution; and

28

(b) in any event has not yet resulted in a final decision by the state supreme court.
-3-

Discussion

1
2

Exhaustion

3

A state criminal defendant seeking to restrain the pending state proceedings via a

4

federal writ of habeas corpus first must exhaust his state court remedies before presenting

5

his constitutional claims to the federal courts. The exhaustion rule applicable to requests for

6

federal pre-conviction intervention in pending state criminal proceedings is grounded in

7

principles of judicial restraint that predate and operate independently of the statutory

8

exhaustion requirement in § 2254. See, e.g., Braden v. 30th Judicial Circuit Court of Kentucky,

9

410 U.S. 484, 489-92 (1973); Carden v. State of Montana, 626 F.2d 82, 83 (9th Cir. 1980).2

10

To satisfy the exhaustion requirement, the claim must have been fairly presented to

11

the state courts completely through to the highest court available, in this case the state

12

supreme court. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc);

13

Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must

14

refer to the specific federal constitutional guarantee and must also state the facts that entitle

15

the petitioner to relief on the federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d

16

983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present the state

17

courts with both the operative facts and the federal legal theory upon which his claim is

18

based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion

19

requirement insures that the state courts, as a matter of federal-state comity, will have the first

20

opportunity to pass upon and correct alleged violations of federal constitutional guarantees.

21

See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991).

22

In the present case, petitioner has not fairly presented any of his habeas claims

23

challenging the state criminal proceeding in an appropriate proceeding where the claims were

24

decided on the merits by the state supreme court.

25
26
27
28

2

Accord Justices of Boston Muni. Court v. Lydon, 466 U.S. 294, 333 (1984)(Stevens, J., concurring in
part and concurring in the judgment); Rose v. Lundy, 455 U.S. 509, 515 (1982)(exhaustion doctrine predates
statutory codification); Ex parte Hawke, 321 U.S. 114, 117 (1944)(applies to all habeas petitions challenging
state custody to avoid interference with the administration of justice in the state courts).

-4-

1

The petition therefore is entirely unexhausted as to any cognizable federal habeas

2

claims. Petitioner therefore must show cause why the petition should not be dismissed

3

without prejudice for complete lack of exhaustion.

4

Younger Abstention

5

As a general rule, even when the claims in a petition, arguendo, otherwise have been

6

fully exhausted in the state courts, a federal court will not entertain a habeas petition seeking

7

intervention in a pending state criminal proceeding, absent special circumstances. See, e.g.,

8

Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); Carden v. Montana, 626 F.2d 82,

9

83-85 (9th Cir. 1980); Davidson v. Klinger, 411 F.2d 746 (9th Cir. 1969). This rule of restraint

10

ultimately is grounded in principles of comity that flow from the abstention doctrine of Younger

11

v. Harris, 401 U.S. 37 (1971). Under the Younger abstention doctrine, federal courts may not

12

interfere with pending state criminal proceedings absent extraordinary circumstances.

13
14
15

Petitioner therefore must show cause why the petition, even if arguendo exhausted,
should not be dismissed without prejudice under the Younger abstention doctrine.
Noncognizable Claims

16

Petitioner may not combine habeas claims challenging his state court prosecution with

17

civil rights claims challenging the conditions of his confinement. Petitioner can pursue any

18

claims regarding the conditions of his confinement only separately in a federal civil rights

19

action under 42 U.S.C. § 1983. In such an action, he must comply with the installment

20

payment requirements for an indigent inmate under the Prison Litigation Reform Act with

21

regard to the $350.00 filing fee for a civil rights action.

22

Petitioner therefore must show cause why all claims in the petition challenging his

23

conditions of confinement, including those in ground 6, should not be dismissed without

24

prejudice as not cognizable in a federal habeas proceeding.

25

IT THEREFORE IS ORDERED that petitioner’s applications (## 1 & 12) to proceed in

26

forma pauperis are GRANTED such that petitioner will not be required to pay the $5.00 filing

27

fee for this action. The clerk shall retain the petition at present without filing same as the

28

court has not granted leave at this juncture to file the petition as presented.
-5-

1

IT FURTHER IS ORDERED that, within thirty (30) days of entry of this order, petitioner

2

shall SHOW CAUSE in writing why: (a) the petition should not be dismissed without prejudice

3

for lack of exhaustion; (b) the petition also should not be dismissed without prejudice based

4

upon the Younger abstention doctrine; and (c) all claims in the petition challenging the

5

conditions of his confinement, including those asserted in ground 6, should not be dismissed

6

without prejudice as not cognizable in a federal habeas proceeding.

7

IT FURTHER IS ORDERED that, if petitioner maintains that any claims in the petition

8

have been exhausted, petitioner shall attach with his response copies of any and all papers

9

that were accepted for filing in the state courts that he contends demonstrate that the claims

10

are exhausted. All factual assertions must be specific and supported by competent evidence.

11

If petitioner does not timely and fully respond to this order, or does not show adequate

12

cause as required, the entire petition will be dismissed without further advance notice.3

13

Given the impending trial date and the concerns of federalism and comity

14

implicated by the pendency of this federal action, no extension of time will be granted

15

to respond to this order except in the most compelling of circumstances. Nothing in

16

either this court’s orders to date or the mere pendency of this action in any manner

17

restrains the state courts from proceeding in the pending criminal prosecution.

18

The clerk additionally shall mail an informational hard copy of this order to the Hon.

19

Carolyn Ellsworth, District Judge, Regional Justice Center, 200 Lewis Ave., Las Vegas, NV

20

89155, in connection with No. C-12-281031-1 in the state district court.
DATED: December 11, 2013.

21
22
23

_________________________________
JAMES C. MAHAN
United States District Judge

24
25
26
27
3

28

The court has not completed initial review herein as to other potential issues, and this order does not
explicitly or implicitly hold that the petition otherwise is free of deficiencies.

-6-