Peterson v. Baca et al

Filing 8

ORDER denying 7 Motion for Relief from Order. Signed by Judge Larry R. Hicks on 3/6/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STANLEY T. PETERSON,
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Petitioner,

3:12-cv-00674-LRH-WGC

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vs.

ORDER

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I. BACA, et al.,
Respondents.

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This closed habeas action comes before the Court on petitioner’s motion (#7) for relief from
order. The motion was mailed and filed within the time period for seeking relief under Rule 59.

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The Court dismissed the action without prejudice because petitioner did not file the petition on

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the required § 2254 form. As noted in the prior order, the one-year limitation period, absent tolling or

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delayed accrual, expired nearly a decade ago. Petitioner’s 2005 petition was denied as untimely, and

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the Court of Appeals denied a certificate of appealability. Dismissal of the present action therefore will

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not materially impact the analysis of whether a new petition is successive and untimely.

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Petitioner’s argument that he is not required to proceed under § 2254 is frivolous. Petitioner is

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challenging his custody pursuant to a Nevada state conviction. Regardless of the legal theory for his

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challenge to that custody, he must proceed under § 2254. Petitioner’s effort to distinguish Shelby v.

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Bartlett, 391 F.3d 1061 (9th Cir. 2004), is based upon a distinction without a difference. The

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determination of whether a petitioner must proceed under § 2254 is a status inquiry directed to the

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source of the petitioner’s custody. If a prisoner is in custody pursuant to a state judgment of conviction,

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he must proceed under § 2254, regardless of the type of proceeding challenged or the underlying legal

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basis for the challenge. See,e.g., 391 F.3d at 1063-64.

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Petitioner is in custody pursuant to a May 30, 2002, state judgment of conviction, pursuant to

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a guilty plea, of sexual assault of a minor under the age of fourteen. He must proceed under § 2254,

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and he must do so on the § 2254 form required by the local rules. See Rule 2(d) of the Rules Governing

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Section 2254 Cases. The required form for a petition to raise what petitioner describes as an “Item No.

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950 Constitutionality of State statute(s)” challenge is the form that the Court has supplied to petitioner

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previously on two occasions. The fact that petitioner incorrectly checked a 950 nature of suit code on

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the civil cover sheet rather than the correct 530 nature of suit code for a habeas action has nil

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significance. If petitioner wishes to seek federal habeas relief challenging his Nevada state custody, he

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must file a new petition on the required § 2254 form in a properly-commenced new action.

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Petitioner should note that allegations of judicial misconduct, partiality, bias, and lack of

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integrity are subject to the same pleading requirements as other allegations in filings. Cf. In re Judicial

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Misconduct, 527 F.3d 792, 796-97 (9th Cir. 2008). The presentation of similar allegations as in the

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present motion, see #7, at 3, with no factual foundation other than petitioner’s displeasure with a court

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ruling may subject petitioner to sanctions under Rule 11(b)(3) of the Federal Rules of Civil Procedure.

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A violation of Rule 11(b)(3) in this matter potentially may result in a referral to correctional authorities

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for consideration of possible imposition of disciplinary penalties for major violation MJ48.1 While the

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present order shall not constitute a basis for such a major violation, this is the last advance warning that

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petitioner will receive.

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IT THEREFORE IS ORDERED that the motion (#7) for relief from order is DENIED.

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DATED this 6th day of March, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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Under MJ48 of the NDOC Administrative Regulations, a major violation may be committed by the following:
“Any violation of the Rules of Court, contempt of court, submission of forged or otherwise false documents, submissions
of false statements, violations of Rules of Civil Procedure and/or receiving sanctions and/or warnings for any such
actions from any court. Although not necessary for disciplinary purposes, any Order from any court detailing such
action shall be sufficient evidence for disciplinary purposes.”

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