Gonzales v. Gentry et al

Filing 16

ORDER that 7 Respondents' Motion to Dismiss is DENIED, without prejudice to Respondents asserting the same arguments later in this action, if and when that becomes appropriate.FURTHER ORDERED that, within 30 days from the date of this ord er, Respondents are to file a memorandum of points and authorities regarding the following issues:1. As the petition in this action concerns the September 30, 2015, judgment, does the entry of the March 1, 2018, amended judgment render this acti on moot, and subject to dismissal on that ground?2. As it appears that there has been no state-court litigation relative to the March 1, 2018, amended judgment, would all claims concerning that amended judgment be unexhausted in state court, such that a federal habeas action relative to the amended judgment would be premature and subject to dismissal on that ground?After Respondents file that memorandum, the petitioner will have 30 days to file a response. Respondents will then have 20 days to file a reply.FURTHER ORDERED that 15 Motion for Appointment of Counsel is DENIED. Signed by Chief Judge Gloria M. Navarro on 8/20/2018. (Copies have been distributed pursuant to the NEF - MMM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 ALFRED CHRISTOPHER GONZALES, Case No. 2:18-cv-00266-GMN-PAL Petitioner, v. ORDER 12 13 14 JO GENTRY, et al., Respondents. 15 16 This action is a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, 17 initiated pro se by Alfred Christopher Gonzales, a Nevada prisoner, on February 13, 2018. 18 In his petition, Gonzales challenges a September 30, 2015, judgment of conviction, in 19 Nevada’s Fifth Judicial District Court (Nye County), in Case Number CR 8231A in that 20 court, by which he was convicted of battery by a prisoner and sentenced to five to twenty 21 years in prison. See Petition for Writ of Habeas Corpus (ECF No. 1); see also Judgment 22 of Conviction, Exh. 19 (ECF No. 8-19). 23 The respondents filed a motion to dismiss (ECF No. 7) on May 14, 2018, 24 contending that certain of Gonzales’ claims are unexhausted in state court, because he 25 did not raise those claims in state-court litigation regarding the September 30, 2015 26 judgment of conviction, and contending that one of his claims is not cognizable in this 27 federal habeas corpus action. Gonzales filed an opposition to the motion to dismiss (ECF 28 No. 13), and Respondents filed a reply (ECF No. 14). 1 1 The Court will deny Respondents’ motion to dismiss, without prejudice to 2 Respondents asserting the same arguments later in this action, if and when that becomes 3 appropriate, as the Court determines that there are more fundamental issues, regarding 4 this action, that should be resolved first. 5 Exhibit 63, filed by Respondents with their motion to dismiss as part of the state- 6 court record, is a copy of an amended judgment of conviction in Case Number CR 8231A. 7 See Amended Judgment of Conviction, Exh. 63 (ECF No. 9-30). The amended judgment 8 was filed in Nevada’s Fifth Judicial District Court on March 1, 2018, after this action was 9 initiated. 10 In the Court’s view, the entry of the amended judgment after the initiation of this 11 action raises questions, in light of Magwood v. Patterson, 561 U.S. 320 (2010), and other 12 precedent concerning the effect of an amended judgment in the context of a habeas 13 corpus petition. First, given that the habeas petition concerns the September 30, 2015, 14 judgment, does the entry of the March 1, 2018, amended judgment render this action 15 moot, and subject to dismissal on that ground? Second, as it appears that there has been 16 no state-court litigation relative to the March 1, 2018, amended judgment, would any claim 17 concerning that amended judgment be unexhausted in state court, such that a federal 18 habeas action relative to the amended judgment would be premature and subject to 19 dismissal? The Court will deny Respondents’ current motion to dismiss, without prejudice, 20 and will entertain briefing from the parties with respect to these issues. 21 On May 30, 2018, Gonzales filed a motion for appointment of counsel (ECF No. 22 15). “Indigent state prisoners applying for habeas corpus relief are not entitled to 23 appointed counsel unless the circumstances of a particular case indicate that appointed 24 counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 25 1196 (9th Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640 (9th Cir. 1970) (per 26 curiam). The Court may, however, appoint counsel at any stage of the proceedings “if the 27 interests of justice so require.” See 18 U.S.C. § 3006A; see also Rule 8(c), Rules 28 Governing § 2254 Cases; Chaney, 801 F.2d at 1196. The Court determines that 2 1 appointment of counsel is not warranted in this case, especially in light of the possible 2 basic procedural shortcomings of this action. 3 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 7) 4 is DENIED, without prejudice to Respondents asserting the same arguments later in this 5 action, if and when that becomes appropriate. 6 IT IS FURTHER ORDERED that, within 30 days from the date of this order, 7 Respondents are to file a memorandum of points and authorities regarding the following 8 issues: 9 10 11 1. As the petition in this action concerns the September 30, 2015, judgment, does the entry of the March 1, 2018, amended judgment render this action moot, and subject to dismissal on that ground? 13 2. As it appears that there has been no state-court litigation relative to the March 1, 2018, amended judgment, would all claims concerning that amended judgment be unexhausted in state court, such that a federal habeas action relative to the amended judgment would be premature and subject to dismissal on that ground? 14 After Respondents file that memorandum, the petitioner will have 30 days to file a 15 response. Respondents will then have 20 days to file a reply. 12 16 17 IT IS FURTHER ORDERED that the petitioner’s Motion to Appoint Counsel (ECF No. 15) is DENIED. 18 19 August 20 DATED THIS ___ day of ______________________, 2018. 20 21 22 GLORIA M. NAVARRO, CHIEF UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 3

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