Doyle v. The Eighth Judicial District Court of the State of Nevada in and for the County of Clark et al

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ORDER This action DISMISSED. Clerk shall enter judgment accordingly. Case terminated. Signed by Judge Larry R. Hicks on 10/22/12. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTONIO DOYLE,

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Petitioner,

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vs.

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The Eighth Judicial District Court
of the State of Nevada in and for the
County of Clark, et al.,

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Respondents.

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3:12-cv-0543-LRH-VPC
ORDER

On October 5, 2012, Antonio Doyle, a prisoner on Nevada’s death row, initiated this action by

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filing, pro se, a document entitled “Petitioner’s Appeal of Denial of Writ of Mandamus” (“petition.”). Doyle

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has not paid a filing fee for the action.

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In his petition, Doyle indicates that he has a petition for writ of habeas corpus pending in a state

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district court, in Nevada’s Eighth Judicial District, and he complains about the amount of time that it has

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taken for that court to rule upon that petition. See Petition, pp. 2-5. According to Doyle, he has twice

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filed, in the Nevada Supreme Court, petitions for writ of mandamus, seeking to compel the state district

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court to issue a ruling in his state habeas action. Id. This filing by Doyle, in federal court, is apparently an

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attempt by Doyle to appeal from the Nevada Supreme Court’s denial of his latest petition for writ of

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mandamus. Id. at 4-5. At the conclusion of his petition, Doyle requests relief from this court as follows:

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///

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Wherefore, all of the above stated reasons, Petitioner respectfully moves this Court
for an Order directing the District Court Judge Togliatti to render a decision within 30 days
of the Order or reassign my case back to Dept. 18 where it was originally reassigned
before being recalled by her.

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Id. at 5 (as in original).
This federal district court, of course, does not have appellate jurisdiction over the Nevada Supreme

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Court. As an attempt to appeal from a ruling from the Nevada Supreme Court, Doyle’s petition is

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frivolous.

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The court treats Doyle’s filing as a petition for writ of habeas corpus, under 28 U.S.C. §2254, by a
person in state custody, which, in the court’s view, it most resembles. Nevertheless, treated as such,

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Doyle’s petition is subject to summary dismissal under Rule 4 of the Rules Governing Section 2254 Cases

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in the United States District Courts (“Rule 4”). Under Rule 4: “If it plainly appears from the petition and

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any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the

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petition and direct the clerk to notify the petitioner.” Rule 4; see also Hendricks v. Vasquez, 908 F.2d

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490 (9th Cir.1990).

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The court takes notice that Doyle already has pending, in this court, a petition for writ of habeas

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corpus pursuant to 28 U.S.C. §2254, in Case Number 3:00-cv-0101-RCJ-WGC. That

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action is stayed, pending the completion of Doyle’s state-court habeas action. In Case Number

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3:00-cv-0101-RCJ-WGC, Doyle is represented by counsel. Any claims regarding alleged illegality of

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Doyle’s imprisonment, under 28 U.S.C. §2254, must be made in Case Number 3:00-cv-0101-RCJ-

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WGC, and, because Doyle is represented in that case by counsel, any such claims must be asserted by

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Doyle’s counsel, not by Doyle pro se. See LR IA 10-6 (“A party who has appeared by attorney cannot

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while so represented appear or act in the case.”).

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Furthermore, federal habeas corpus relief is available “only on the ground that [the petitioner] is in

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custody in violation of the Constitution or law or treaties of the United States.”

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28 U.S.C. §2254. Doyle does not allege in his petition any federal law violation.

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Moreover, even if Doyle did assert a violation of federal law in his petition, it is well-established that

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federal habeas relief is not available to redress errors in state post-conviction proceedings. Franzen v.

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Brinkman, 877 F.2d 26, 26 (9th Cir.1989) (per curiam) (“a petition alleging errors in the state

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post-conviction review process is not addressable through [federal] habeas corpus proceedings”); see also

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Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir.1998) (federal habeas relief is not available to redress

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alleged procedural errors in state post-conviction proceedings”); Gerlaugh v. Stewart, 129 F.3d 1027,

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1045 (9th Cir.1997) (errors committed during state post-conviction proceedings are not cognizable in a

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federal habeas action); Villafuerte v. Stewart, 111 F.3d 616, 632 n. 7 (9th Cir.1997) (claim that

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petitioner “was denied due process in his state habeas corpus proceedings” was not cognizable on federal

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habeas review).

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It plainly appears that Doyle is not entitled to relief in this court on the petition that he has filed in

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this case. Therefore, this case will be summarily dismissed pursuant to Rule 4.

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IT IS THEREFORE ORDERED that this action is DISMISSED.

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IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly.

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IT IS FURTHER ORDERED that the Clerk shall notify the petitioner of the dismissal of this

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action, by sending him a copy of this order and the resulting judgment.

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Dated this 22nd day of October, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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