Munoz v. Smith et al

Filing 86

ORDER granting in part ECF No. 82 Motion to Dismiss. Petitioner shall have until 10/27/2017 to file a second amended petition that enumerates all the claims currently in ground 1 of the first amended petition that are addressable in federal habeas corpus. Signed by Judge Larry R. Hicks on 09/27/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PETER J. MUNOZ, JR.,

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Petitioner,

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vs.

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Case No. 3:11-cv-00197-LRH-RAM

GREGORY SMITH, WARDEN, et al.,

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ORDER

Respondents.

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Before the court are the first amended petition for writ of habeas corpus (ECF No. 69),

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respondents’ second motion to dismiss (ECF No. 82), petitioner’s opposition (ECF No. 83), and

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respondents’ reply (ECF No. 84). For the reasons stated below, the court grants the motion to

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dismiss in part, and petitioner will need to file a second amended petition.

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When the court denied respondents’ first motion to dismiss (ECF No. 76), the court noted

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that it might not be able to grant any habeas corpus relief on ground 1, because petitioner was

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challenging the validity of his conditions of lifetime supervision but not the validity of lifetime

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supervision itself. Petitioner would not be relieved of his current level of custody, and thus his

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claims appeared to be outside the core of habeas corpus. ECF No. 81, at 3-5 (citing Nettles v.

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Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), cert. denied 137 S. Ct. 645 (2017)). Nettles was

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decided after the briefing on the first motion to dismiss had completed, and the court gave

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respondents leave to file another motion to dismiss that addressed Nettles. ECF No. 81, at 5.

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In the second motion to dismiss, respondents argue that Nettles bars consideration of ground
1. Petitioner admits that some of ground 1 are challenges to the conditions of lifetime supervision,

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which are not addressable in federal habeas corpus, but that other parts of ground 1 challenge the

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validity of lifetime supervision itself. Respondents then note that the problem with ground 1 is that

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it is a vague collection of different claims of constitutional violations. The court agrees. For

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example, petitioner claims that Nevada’s laws regarding lifetime supervision are unconstitutional to

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the extent that they seek to implement provisions of the Adam Walsh federal legislation, without

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any explanation of what those provisions are and how they are applied to petitioner. ECF No. 69, at

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11. Petitioner should file an amended petition that abandons the claims for relief that are not

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available under federal habeas corpus and that enumerates each claim for relief that does remain.

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IT IS THEREFORE ORDERED that respondents’ second motion to dismiss (ECF No. 82) is

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GRANTED in part. Petitioner shall have thirty (30) days from the date of entry of this order to file

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a second amended petition that enumerates all the claims currently in ground 1 of the first amended

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petition that are addressable in federal habeas corpus.

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DATED this 27th day of September, 2017.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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