Fernandez v. Cox et al

Filing 13

ORDER granting 9 Motion to Dismiss. Denying 11 Motion for District Judge to Reconsider Order. IT IS FURTHER ORDERED that the clerk of the court shall send petitioner a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 fo rm. Petitioner shall sign page 9 of the petition form and shall re-file his petition with the signed page 9 within fifteen (15) days from the date of entry of this order. Signed by Chief Judge Gloria M. Navarro on 9/10/2014. (Copies have been distributed pursuant to the NEF - DKJ)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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RENE F. FERNANDEZ,

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Petitioner,

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vs.

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JAMES GREG COX, et al.,

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Case No. 2:13-cv-02158-GMN-VCF

Respondents.

ORDER

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Before the court are respondents’ motion to dismiss (#9) and petitioner’s opposition (#12).

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Respondents’ sole ground for dismissal of this action is that petitioner did not sign the petition

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under penalty of perjury. Petitioner states that he realized that he sent the petition to the court

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without some pages, but the missing pages that he later submitted, attached to a letter dated

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November 22, 2013 (#3), do not include the signature page. Petitioner already has a copy of his

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petition. The court will send petitioner a blank habeas corpus petition form. Petitioner will need to

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sign page 9 of the petition form in the appropriate locations and attach it to the end of his copy of

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the petition. Petitioner then will need to re-file his petition with the signed page 9 of the petition

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form.

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Petitioner will not need to mail a copy of his re-filed petition to respondents. For this matter,

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the notice of electronic filing generated by CM/ECF when the re-filed petition is docketed will

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suffice for service and proof of service upon respondents.

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Petitioner has submitted a motion for reconsideration (#11) of the court’s dismissal of

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ground 6. Ground 6 was a claim that petitioner’s conviction for trafficking in a schedule I

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controlled substance was invalid because the controlled substance at issue, cocaine, is a schedule II

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controlled substance. The court dismissed the ground because, under Nevada law, cocaine is a

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schedule I controlled substance. Petitioner now contends that the regulations placing cocaine in

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Nevada’s schedule I violate the doctrine of separation of powers. Petitioner is confusing federal law

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and state law. Congress has defined cocaine as a schedule II controlled substance for the purposes

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of federal law. However, petitioner was convicted of a violation of state law, not federal law.

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Nothing in the Constitution of the United States or federal statutes requires Nevada to adopt

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controlled-substance law identical to federal controlled-substance law.

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (#9) is GRANTED.

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IT IS FURTHER ORDERED that the clerk of the court shall send petitioner a petition for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254 form.

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IT IS FURTHER ORDERED that plaintiff shall sign page 9 of the petition form in the

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appropriate locations. Petitioner shall then attach the signed page 9 of the form to the end of his

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copy of the petition for a writ of habeas corpus. Petitioner shall then re-file his petition with the

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signed page 9 of the petition form within fifteen (15) days from the date of entry of this order.

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IT IS FURTHER ORDERED that, notwithstanding the provisions of the court’s order

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directing service (#6), and for the purposes of re-filing the petition only, petitioner need not mail a

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copy of the re-filed petition to respondents.

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IT IS FURTHER ORDERED that respondents shall have thirty (30) days from the date of

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electronic service of the re-filed petition to file and serve an answer, which shall comply with Rule 5

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of the Rules Governing Section 2254 Cases in the United States District Courts.

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IT IS FURTHER ORDERED that petitioner’s motion for reconsideration (#11) is
DENIED.
DATED this 10th day of September, 2014.

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_________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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