Crisman v. State of Nevada

Filing 4

ORDER this action is DISMISSED WITH PREJUDICE for lack of a proper petition and failure to state a cognizable claim for federal habeas relief. IT IS FURTHER ORDERED that all pending motions in this action are DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly. Signed by Chief Judge Gloria M. Navarro on 7/23/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BRIAN CRISMAN,
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Petitioner,

Case No. 2:14-cv-01702-GMN-CWH

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vs.

ORDER

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STATE OF NEVADA, et al.,
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Respondents.
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This action, filed by a Nevada state prison proceeding pro se, was opened by the Clerk of
Court as a habeas corpus action pursuant to 28 U.S.C. § 2254.
The Court has conducted a preliminary review of the documents initiating this action

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pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

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A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that

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“he is in custody in violation of the Constitution . . . .” 28 U.S.C. § 2254(a). Unless an issue of

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federal constitutional or statutory law is implicated by the facts presented, the claim is not

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cognizable under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68 (1991). A state law

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issue cannot be mutated into one of federal constitutional law merely by invoking the specter of a

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due process violation. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S.

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881 (1997). Petitioner must demonstrate the existence of federal constitutional law which

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establishes the right in question. The Court must dismiss a petition “[i]f it plainly appears from the

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petition and any attached exhibits that the petitioner is not entitled to relief in the district court.”

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Rule 4 of the Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490

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(9th Cir. 1990).

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Petitioner initiated this action by filing a “motion [for] modification of sentence.” (ECF No.

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1). The motion is captioned for a Nevada state court. (ECF No. 1, at p. 1). Petitioner does not

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allege violation of a federal constitutional right. Rather, petitioner has submitted a motion for

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modification of his sentence pursuant to Nevada state law, apparently intended for review by a

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Nevada state court. There is no actual petition and petitioner’s motion for modification does not set

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forth a viable claim for federal habeas corpus relief. As such, this action must be dismissed. See

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Rule 4, Rules Governing Section 2254 Cases. The Court further notes that petitioner has been

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afforded an opportunity to submit a proper petition, as the Clerk of Court sent petitioner a blank

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habeas corpus form and instructions on October 15, 2014. Finally, the Court notes that petitioner

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has since filed a habeas corpus petition in a new action, opened as case number 3:14-cv-636-HDM-

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WGC. It is therefore appropriate to dismiss this action for lack of a proper petition and failure to

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state a cognizable claim for federal habeas relief.

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IT IS THEREFORE ORDERED that this action is DISMISSED WITH PREJUDICE
for lack of a proper petition and failure to state a cognizable claim for federal habeas relief.

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IT IS FURTHER ORDERED that all pending motions in this action are DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Reasonable

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jurists would not find the dismissal of the improperly-commenced action without prejudice to be

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debatable or wrong.

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IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly.

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DATED this 23rd day of July, 2015.

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Gloria M. Navarro, Chief Judge
United States District Court

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