Williams v. State of Nevada

Filing 3

ORDER granting ECF No. 1 Motion/Application for Leave to Proceed in forma pauperis; Petitioner to file proof he may have to demonstrate that the petition should not be dismissed for lack of jurisdiction by 5/13/2017; if Petitioner is unable to demonstrate that he satisfies the custody requirement, the Court will enter an order dismissing the petition. Signed by Judge Miranda M. Du on 04/13/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES WILLIAMS,

Case No. 2:17-cv-00350-MMD-CWH
Petitioner,

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v.

ORDER

STATE OF NEVADA, et al.,
Respondents.

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Before the Court is a pro se petition for writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254, submitted by James Williams (ECF No. 1-1). His application to proceed in forma

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pauperis (ECF No. 1) will be granted.

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While not entirely clear, it appears from Williams’ filing that he is no longer in

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custody pursuant to the judgment of conviction he wishes to challenge (ECF No. 1-1.)

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The federal habeas statute gives the United States district courts jurisdiction to entertain

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petitions for habeas relief only from persons who are “in custody in violation of the

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Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3) (emphasis

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added); see also 28 U.S.C. § 2254(a). The U.S. Supreme Court, in Maleng v. Cook, 490

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U.S. 488 (1989), noted that the Court “interpreted the statutory language as requiring that

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the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the

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time his petition is filed.” 490 U.S. at 490-91 (emphasis added) (citation omitted). A person

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who is on parole or probation at the time he files his federal habeas petition satisfies the

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custody requirement. Jones v. Cunningham, 371 U.S. 236, 240-243 (1963).

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Here, Williams asks this court to “invalidate” his judgment of conviction in case no.

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C294333. He asserts that he “is actually in custody” on that case because he is currently

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facing new charges and he could “be impeached by the underlying conviction” in case no

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294333. The court takes judicial notice of the Nevada Department of Corrections public

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inmate information, and it appears that Williams has discharged his sentence and been

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released from custody.

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In an abundance of caution, the Court grants Williams thirty (30) days from the

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date of this order to show cause and file such proof to demonstrate that he was in custody

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pursuant to the judgment of conviction he wishes to challenge at the time he filed this

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petition. If Williams cannot demonstrate that he meets the custody requirement, this Court

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will enter an order dismissing the petition with prejudice.

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It is therefore ordered that petitioner’s application to proceed in forma pauperis
(ECF No. 1) is granted.

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It is further ordered that petitioner will have thirty (30) days from the date of entry

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of this order to show cause and file such proof he may have to demonstrate that the

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petition should not be dismissed for lack of jurisdiction.

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It is further ordered that if petitioner is unable to demonstrate that he satisfies the
custody requirement, the Court will enter an order dismissing the petition.

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DATED THIS 13th day of April 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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