Acosta v. State of Nevada

Filing 3

ORDER DISMISSING CASE without prejudice to a properly commenced new action. A certificate of appealability is DENIED. Clerk shall send petitioner two copies each if IFP application and 2254 petition form with instructions for each form (mailed 8/29/14). Clerk shall enter judgment accordingly. Signed by Judge Howard D. McKibben on 8/29/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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MICHAEL ACOSTA,
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Petitioner,

3:14-cv-00451-HDM-VPC

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vs.
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ORDER
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STATE OF NEVADA,
Respondent.

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This pro se prisoner matter comes before the Court for initial review. Petitioner has

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presented only a form motion for appointment of counsel and for an evidentiary hearing for

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a habeas case. He has not paid the filing fee or submitted an application to proceed in forma

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pauperis. He has not filed a habeas petition.

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Petitioner’s papers are subject to multiple substantial defects.

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First, petitioner did not either pay the filing fee or submit an application to proceed in

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forma pauperis. Petitioner first must satisfy the filing fee requirement or obtain leave to

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proceed in forma pauperis in order to commence an action in federal court.

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Second, petitioner did not file a habeas petition. Petitioner may not commence an

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action in general by filing a motion, and he may not commence a habeas matter by filing only

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a motion for appointment of counsel. As discussed further below, the Court will not appoint

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counsel to prepare an original federal petition for petitioner.

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Third, petitioner did not name his physical custodian as respondent. Under 28 U.S.C.

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§ 2242 and Habeas Rule 2(a), the petition must name the officer who has custody of the

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petitioner as respondent. The Court does not have jurisdiction unless the physical custodian

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is named as respondent. See, e.g., Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159

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L.Ed.2d 513 (2004).

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Fourth, petitioner may not proceed against the sole respondent named, the State of

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Nevada. The state sovereign immunity recognized by the Eleventh Amendment prevents

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petitioner from proceeding directly against the State in federal court even in a habeas action,

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as state sovereign immunity applies regardless of the relief sought. See, e.g., Pennhurst

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State School & Hospital v. Halderman, 465 U.S. 89, 100-01 (1984). The Court does not have

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jurisdiction over a suit against the State.

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Given the multiple defects presented, the action will be dismissed without prejudice.

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A dismissal of the present improperly-commenced action without prejudice will not result in

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substantial collateral prejudice to petitioner. It appears that substantial time remains in the

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federal limitation period.1 Moreover, in all events, there are no claims contained in the current

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papers to which later claims in a proper pleading might relate back. The Court accordingly

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will dismiss the action without prejudice.

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In this regard, as noted above, the Court does not appoint counsel for noncapital

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petitioners to prepare a federal habeas petition.

There is no constitutional right to

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appointment of counsel in a federal habeas action. Petitioner asserts that: (a) his state post-

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conviction counsel withdrew from that representation after his state post-conviction appeal

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concluded; (b) counsel stated to him in a letter that he could contact the Federal Public

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Defender and ask for assistance; and (c) an attorney with the Federal Public Defender told

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The online docket of the state district court reflects that petitioner Michael Acosta was convicted,
pursuant to a jury verdict, of robbery, in No. C252105. The state supreme court affirmed on direct appeal on
February 9, 2011, in No. 55584. The time to file a certiorari petition expired on May 10, 2011. After 62 days
had passed, on July 12, 2011, petitioner filed a state post-conviction petition. The state supreme court
affirmed the denial of the petition, and the remittitur issued on May 6, 2014, in No. 63435. As of the actual
filing date of this federal action, an additional 114 days had passed since the remittitur. It thus appears that
approximately six months remained in the federal limitation period at filing.

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Petitioner at all times remains responsible for calculating the running of all limitation periods and
timely seeking relief in a proper proceeding. The Court’s discussion herein does not represent a definitive
holding as to the running of the federal limitation period. Petitioner remains responsible for independently
calculating the running of the federal limitation period and timely asserting claims.

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him that the office could not assist him because he did not have a filed case.

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To be clear, the Court will not appoint counsel for petitioner to prepare a federal

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petition for him. Petitioner must first file his petition and then request the appointment of

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counsel. If petitioner lets the remaining time in the federal limitation period expire while he

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attempts to secure counsel without first filing a timely petition, any federal petition filed after

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the limitation period expires will be dismissed as untimely.

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Petitioner alone is responsible for calculating the running of the federal limitation period
under 28 U.S.C. § 2244(d) and timely presenting claims.
IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice
to a properly commenced new action.

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IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of

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reason would not find a dismissal without prejudice of the defective papers presented to be

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debatable or wrong.

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The Clerk shall send petitioner two copies each of a pauper application for a prisoner
and a noncapital Section 2254 form along with one copy of the instructions for each form.
The Clerk of Court shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED: August 29, 2014.

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___________________________________
HOWARD D. MCKIBBEN
United States District Judge

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