Penny v. Warden

Filing 8

ORDERED that # 6 Motion for judgment as matter of law, and # 7 Motion for relief from order are DENIED. This action remains closed. Signed by Chief Judge Robert C. Jones on 9/24/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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WIL P. PENNY,
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Petitioner,

3:12-cv-00420-RCJ-VPC

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vs.

ORDER

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STATE OF NEVADA,
Respondent.

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This closed habeas action comes before the Court on petitioner’s motion (#6) for

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judgment as a matter of law and motion (#7) for relief from order. The motion seeking post-

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judgment relief was mailed and filed within the time for seeking relief under Rule 59 of the

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Rules of Federal Civil Procedure.

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On September 6, 2012, the Court dismissed this action without prejudice because

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petitioner failed to properly commence the action by filing the petition on the Court’s required

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Section 2254 petition form. The Court noted, following review of the state court procedural

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history, that a dismissal without prejudice of the improperly-commenced action would not

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result in a promptly-filed new petition being untimely.

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The motion (#6) for judgment as a matter of law was mailed after entry of judgment,

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but the motion does not appear to be intended as a post-judgment motion. Petitioner instead

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in essence maintains that he is entitled to a default judgment because he purportedly served

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a copy of the petition by mail and the respondents have not filed a response. The motion is

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frivolous. Under well-established law, there can be no judgment by default in a habeas

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matter. See,e.g., Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990). Petitioner is subject

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to a presumptively valid judgment of conviction unless and until overturned by a decision on

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the merits. Under Rule 5(a) of the Rules Governing Section 2254 Cases, respondents, even

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if otherwise validly served, are under no obligation to respond to a habeas petition until

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expressly ordered to do so by the district court following initial review of the petition under

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Rule 4. Moreover, mailing an initial pleading does not constitute valid service in all events.

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The Nevada Rules of Appellate Procedure have no application in this federal court, and the

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provisions of 28 U.S.C. § 2243 do not require that the Court proceed differently than it did in

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this case. The motion is completely without merit.

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The motion (#7) for relief from judgment also is without merit. Petitioner contends that

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he is not required to file his petition on a § 2254 form because he is entitled to proceed

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instead under § 2241. As the Court noted in the prior order, the determination of whether a

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petitioner must proceed under § 2254 rather than § 2241 is a status inquiry directed to the

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source of the petitioner’s custody rather than the target of his challenge. See,e.g., Shelby v.

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Bartlett, 391 F.3d 1061, 1063-64 (9th Cir. 2004). Petitioner is in custody pursuant to a Nevada

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state conviction. He therefore must proceed under § 2254, and he accordingly must use the

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Court’s required § 2254 form as required by Local Rule LSR 3-1.

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The Court reiterates that petitioner at all time remains responsible for calculating the

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running of the one-year federal limitation period and timely presenting exhausted claims. If

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he fails to timely seek relief in compliance with the governing law and rules of this Court, a

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later untimely petition will be dismissed with prejudice. The pendency of proceedings

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challenging the dismissal in this matter does not toll the running of the limitation period.

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IT THEREFORE IS ORDERED that both motions (## 6 & 7) are DENIED. This action
remains closed.
DATED: September 24, 2012

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__________________________________
ROBERT C. JONES
Chief United States District Judge
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