Warenback v. Neven et al

Filing 34

ORDER Granting Respondents' 21 Motion to Dismiss. The petition is DISMISSED WITH LEAVE TO AMEND. Within 30 days of the date of this order, petitioner shall file and serve an amended petition. Respondents have 30 days from date of service to file a response. Petitioner has 30 days following service to file a reply. Petitioner's 33 Motion for Submission is Denied as moot. Signed by Judge Andrew P. Gordon on 2/13/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 DOUGLAS HARRY WARENBACK, 10 11 12 Case No. 2:15-cv-01789-APG-VCF Petitioner, v. ORDER D.W. NEVEN, et al., Respondents. 13 This pro se habeas matter under 28 U.S.C. § 2254 comes before the court on 14 15 respondents’ motion to dismiss petitioner Douglas Harry Warenback’s petition (ECF No. 16 21). Warenback opposed (ECF No. 27), and respondents replied (ECF No. 32). 17 I. Procedural History and Background 18 On June 19, 2013, Warenback pleaded guilty to pandering of a child (exhibit 10).1 19 The state district court sentenced him to a term of 48 to 120 months. Exh. 13. 20 Judgment of conviction was filed on December 17, 2013. Exh. 15. 21 Warenback did not file a direct appeal. The Nevada Supreme Court affirmed the 22 denial of his state postconviction habeas corpus petition on April 14, 2015, and remittitur 23 issued on May 11, 2015. Exhs. 91, 93. Warenback also filed a petition for writ of 24 certiorari with the Nevada Supreme Court. Exh. 70. The Nevada Supreme Court 25 declined to exercise original jurisdiction and dismissed the petition without considering it 26 on the merits. Exh. 74. 27 28 1 Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 21, and are found at ECF Nos. 22-26. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Warenback dispatched his federal petition for mailing on September 13, 2015 (ECF No. 11). Respondents now argue that Warenback’s petition should be dismissed for failing to set forth any grounds with any specificity (ECF No. 21). II. Current Petition is Insufficiently Pled Respondents point out that for each ground of Warenback’s petition, he tries to incorporate by reference claims he alleges that he raised in his state postconviction petitions. Warenback does not set forth even a brief factual basis for any ground on the form petition (see ECF No. 11). Moreover, he fails to even attach copies of the statecourt pleadings to which he refers. It is clear from Warenback’s opposition to the motion to dismiss that he thought he was complying with the instructions that accompany this court’s 28 U.S.C. § 2254 form petition by only attaching the Nevada Supreme Court orders affirming the denial of his state petitions and nothing else. However, it is not possible for respondents to discern with the necessary specificity the grounds that Warenback seeks to present to this court. Accordingly, respondents’ motion to dismiss shall be granted. However, Warenback has leave to file an amended petition that briefly sets forth for each of the grounds that he was trying to present what constitutional provision or provisions he believes was violated for each ground and briefly sets forth the factual allegations for each ground ON THE FORM PETITION ITSELF. Warenback is expressly advised that failure to file an amended petition in conformance with this order shall result in the dismissal of this habeas action with prejudice. III. Conclusion IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 21) is GRANTED. IT IS FURTHER ORDERED that the petition is DISMISSED WITH LEAVE TO AMEND. Within thirty (30) days of the date of this order, petitioner shall file and serve an amended petition in conformance with this order. 28 2 1 2 3 4 5 6 7 8 9 10 11 12 13 IT IS FURTHER ORDERED that respondents shall have thirty (30) days from the date of service of petitioner’s amended petition to file a response that complies with Habeas Rule 5 and the provisions of this court’s order dated January 4, 2016 (ECF No. 10). IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following service of respondents’ answer, motion to dismiss, or other response to file a reply or opposition. IT IS FURTHER ORDERED that petitioner’s motion for submission (ECF No. 33) is DENIED as moot. IT IS FURTHER ORDERED that petitioner is expressly advised that failure to file an amended petition in conformance with this order shall result in the dismissal of this habeas action with prejudice. DATED: 13 February 2017. 14 15 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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