Bacon v. Williams et al

Filing 12

ORDER denying Petitioner's ECF No. 10 Motion to Reopen Case; denying Petitioner's 11 Motion for Leave to Amend. Signed by Judge Andrew P. Gordon on 11/16/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PERCY LAVAE BACON,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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2:15-cv-01144-APG-PAL

Respondents.

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ORDER

_________________________________/

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This action, which has been closed for well over a year, was a petition for writ of habeas

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corpus by Nevada prisoner Percy Lavae Bacon. In his petition, filed on June 17, 2015, Bacon

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contended that his federal constitutional rights were violated in the manner in which a parole hearing

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was conducted.

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The court screened Bacon’s original habeas petition (ECF No. 1) on June 19, 2015, and

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determined that it did not state a viable claim for habeas corpus relief. See Order entered June 19,

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2015 (ECF No. 2). The court granted Bacon an opportunity to file a first amended petition for writ

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of habeas corpus to attempt to cure the shortcomings of his original petition. See id. The court

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granted Bacon until and including July 31, 2015, to file the first amended petition. See id. The court

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warned that if Bacon did not comply with its order, and file, within the time allowed, a first amended

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petition for writ of habeas corpus, rectifying the shortcomings in his petition described in the order,

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this action would be dismissed. See id.

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Bacon did not file a first amended petition by July 31, 2015. Therefore, on August 6, 2015,

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the court dismissed the action for the reasons stated in the June 19, 2015 order. See Order entered

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August 6, 2015 (ECF No. 3). The court denied Bacon a certificate of appealability. See id.

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Judgment was entered that same date. See Judgment (ECF No. 4).

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On August 17, 2015, Bacon filed an Ex Parte Motion for Appointment of Counsel

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(ECF No. 5), a First Amended Petition for Writ of Habeas Corpus (ECF No. 6), and a Motion to

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Alter or Amend Judgment (ECF No. 7). In the amended habeas petition, Bacon stated, in conclusory

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terms, that, with respect to a 2008 parole hearing, the Nevada Department of Corrections denied him

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any opportunity to be heard. First Amended Petition (ECF No. 6), p. 3. However, it plainly

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appeared that Bacon had not exhausted his claim in state court. See id. at 4. Therefore, there was no

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showing of cause for relief from the August 6, 2015 judgment. See Fed. R. Civ. P. 59, 60; 28 U.S.C.

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§2254(b)(1). Therefore, on October 13, 2015, the court denied Bacon’s motion to alter or amend

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judgment and his motion for appointment of counsel.

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Meanshile, on September 3, 2015, Bacon filed a notice of appeal (ECF No. 8). The status of
Bacon’s appeal is unclear.
Now, on November 9, 2016, Bacon filed a motion to reopen this case (ECF No. 10), and a

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motion for leave to file an amended petition (ECF No. 11), with his proposed amended petition

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attached.

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There is a final judgment in this case, and there is apparently an appeal pending. Bacon does

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not show cause why the case should be reopened and the judgment reconsidered. The court will

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deny Bacon’s motions.

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Bacon states in his November 9 filings that, between January 27, 2016, and September 30,

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2016, he pursued state-court litigation regarding the matters that are the subject of his petition in this

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case, and he asserts that he has now exhausted his state-court remedies with respect to his claims. If

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that is the case, and if Bacon now wishes to pursue federal habeas corpus relief, he may seek to do

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so by initiating a new federal habeas corpus action in this court. (The court means to express no

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opinion here with respect to either the procedural viability or the merits of any claim that Bacon may

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make in any such petititon.)

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IT IS THEREFORE ORDERED that petitioner’s motion to reopen case (ECF No. 10) is
DENIED.

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IT IS FURTHER ORDERED that petitioner’s motion for leave to amend is DENIED.

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Dated: November 16, 2016.

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UNITED STATES DISTRICT JUDGE

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