Bacon v. Williams et al

Filing 2

ORDER that Petitioner has until 7/31/2015 to file a First Amended Petition for Writ of Habeas Corpus. If Petitioner does not comply with this Order this action will be dismissed. Signed by Judge Andrew P. Gordon on 6/19/2015. (Copies have been distributed pursuant to the NEF - SLD)

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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.

ORDER

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_________________________________/

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This action is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Percy

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Lavae Bacon, a Nevada Prisoner. Bacon filed his petition for writ of habeas corpus on June 17,

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2015 (ECF No. 1). He paid the filing fee for his petition. Bacon claims that his federal

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constitutional rights were violated with regard to a parole hearing and denial of parole. Bacon’s

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petition includes two claims for relief.

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The court has reviewed Bacon’s petition pursuant to Rule 4 of the Rules Governing Section

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2254 Cases in the United States District Courts. As it is currently drafted, the petition does not state

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grounds for habeas corpus relief to which the respondents could reasonably be expected to respond.

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The court, therefore, will not order the respondents served at this time.

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In Ground 1 of his habeas petition, Bacon claims that his federal constitutional right to due

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process of law was violated because he was not allowed to personally attend his parole hearing.

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With respect to a parole hearing, an inmate is constitutionally entitled to an opportunity to be heard.

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See Swarthout v. Cooke, 562 U.S. 216, 220 (2011). However, Bacon does not clearly state that he

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was denied an opportunity to be heard; rather, he alleges only that he was denied “a personal

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appearance before the Nevada Board of Parole Commissioners.” See Petition for Writ of Habeas

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Corpus (ECF No. 1), p. 3. If it is Bacon’s contention that he was denied an opportunity to be heard,

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he must clearly state that allegation, and he must state specific factual allegations to support it.

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Furthermore, Ground 1 is vague in that it does not state the date of the parole hearing that is

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at issue. See id. Documents attached to Bacon’s petition appear to refer to two different parole

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hearings, one on July 21, 2008, and one on September 15, 2014. Bacon must clarify which parole

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hearing was conducted in violation of his constitutional rights as alleged in Ground 1.

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With respect to Ground 2, it is difficult to determine what Bacon’s claim is. It appears that

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the gist of Ground 2 is that Bacon was denied parole. However, it is well-established that there is no

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substantive federal right to release on parole, and the only federal right in the context of parole

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hearings is a procedural right. See Swarthout, 562 U.S. at 220-22. The “beginning and the end of

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federal habeas courts’ inquiry” is whether the inmate received the minimal procedural protections

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required under the Due Process Clause. Id.

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Moreover, Bacon’s petition is insufficient with respect to his allegation that he has exhausted

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his claims in state court. Bacon states that he has exhausted all the claims in his petition, apparently

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by means of a state-court post-conviction petition. Petition for Writ of Habeas Corpus, p. 1.

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However, Bacon does not state the date on which any such petition was filed in the state district

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court; he does not state the date on which the appeal in such action was decided; and he does not

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provide the case number of either the district court case or the Nevada Supreme Court case in which

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his claims were exhausted. Bacon must provide such specific information regarding his alleged

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exhaustion of claims in state court, such that respondents may reasonably be expected to respond.

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The court will grant Bacon an opportunity to file a first amended petition for writ of habeas

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corpus to attempt to cure the shortcomings of his petition described above. When drafting the first

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amended petition, the petitioner should write the words “First Amended” into the caption to indicate

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it is such. If Bacon does not comply with this order, and file, within the time allowed, a first

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

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above, this action will be dismissed.

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IT IS THEREFORE ORDERED that petitioner shall have until and including

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July 31, 2015, to file a first amended petition for writ of habeas corpus in this action, as described

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above.

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IT IS FURTHER ORDERED that, if petitioner does not comply with this order, this action
will be dismissed.
Dated this 19th day of June, 2015.

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UNITED STATES DISTRICT JUDGE
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