Gomez v. Baker

Filing 5

ORDER. Clerk shall separately file "Petitioners Writ Quo-Warranto and Supporting Memorandum..." and "Notice of Petitioners Writ..." Motion to Amend Writ Title 4 is denied. This action is dismissed. Clerk shall enter judgment accordingly. Signed by Judge Robert C. Jones on 1/5/16. (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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GERVIN GOMEZ,

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Petitioner,

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vs.

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3:15-cv-00299-RCJ-WGC

RENEE BAKER,

ORDER
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Respondent.
______________________________/

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This action was initiated on June 5, 2015, by Gervin Gomez, a Nevada prisoner. On that

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date, Gomez submitted a document entitled “Petitioners Writ Quo-Warranto and Supporting

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Memorandum, In Motion to Dismiss for Lack of Subject-Matter Jurisdiction” and a document

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entitled “Notice of Petitioners Writ of Quo-Warranto and Supporting Memorandum” (both

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documents at ECF No. 1, in the electronic file for this case).

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On October 19, 2015, Gomez paid the $5 filing fee for the action (ECF No. 3). Therefore,
Gomez’s petition, and his notice regarding it, will be filed.
On December 14, 2015, Gomez filed a “Motion to Amend Writ Title” (ECF No. 4). In that

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document, Gomez requests that the title of his petition be amended; he states that the correct title

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should be: “Petitioners Writ of Coram Nobis Supporting Memorandum of Actual Innocence in

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Motion to Dismiss for Lack of Subject-Matter Jurisdiction.” The court will deny the motion to

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amend, as amendment of the title of Gomez’s petition would be futile. Rule 15(a) of the Federal

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Rules of Civil Procedure provides that leave to amend “shall be freely given when justice so requires.”

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But a federal court need not allow a prisoner to amend a petition under Rule 15 where the

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amendment would be futile. Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.1995). Regardless

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whether Gomez’s petition is entitled, and construed as, a coram nobis petition or a quo warranto

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petition, it is plainly meritless, and subject to summary dismissal.

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It appears from Gomez’s petition that in 2004 he was charged in Nevada’s Eighth Judicial

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District Court (Clark County) with conspiracy to commit murder, murder, kidnapping, and robbery.

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Petition, pp. 13-18. He was apparently convicted of one or more of those charges, and sentenced to

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one or more prison terms, which he is currently serving at Nevada’s Ely State Prison. As the court

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understands Gomez’s petition, he asserts that he was charged with, and convicted of, commission of

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crimes defined in statutes set forth in the Nevada Revised Statutes, which statutes, as set forth in the

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Nevada Revised Statutes, are contrary to Article IV, section 23, of the Nevada Constitution, because

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they do not bear enacting clauses. As relief, Gomez requests that the case against him be dismissed,

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that his convictions be expunged, and that he be “grant[ed] leave for filing a civil tort claim action.”

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Petition, pp. 22-23.

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“Coram nobis is an extraordinary writ that usually is available only to petitioners who have

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fully served their sentences.” United States v. Monreal, 301 F.3d 1127, 1131-32 (9th Cir.2002). The

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writ of error coram nobis may be issued by a federal court only with respect to a federal criminal

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sentence. See Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985) (“The writ of error coram

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nobis fills a void in the availability of post-conviction remedies in federal criminal cases.”); Hensley v.

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Municipal Court, 453 F.2d 1252, 1252 n. 2 (9th Cir.1972) (holding that, even though habeas

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jurisdiction was lacking, a petition could not be treated as “one seeking coram nobis because

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[petitioner] seeks to challenge a state court proceeding in federal court” and “[c]oram nobis lies only

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to challenge errors occurring in the same court”), rev’d on other grounds, 411 U.S. 345 (1973).

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Gomez’s petition to this federal court for relief from his state conviction, construed as a petition for

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writ of error coram nobis, is wholly without merit.

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Construed as a quo warranto petition, as it was originally entitled, Gomez’s petition is also

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completely meritless. The United States Supreme Court has explained that a writ quo warranto “is

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addressed to preventing a continued exercise of authority unlawfully asserted, not to a correction of

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what already has been done under it or to a vindication of private rights.” Johnson v. Manhattan Ry.

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Co., 289 U.S. 479, 502 (1933). “[T]he federal common law remedy has been available only in

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connection with proceedings over an individual’s right to hold an office or position.” Sundance Land

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Corp. v. Cmty. First Fed. Sav. & Loan Ass’n, 840 F.2d 653, 665 (9th Cir.1988). Gomez does not

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seek such relief. Construed as a petition for a writ quo warranto, Gomez’s petition provides no

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vehicle for attacking the validity of the Nevada Revised Statutes, and, correspondingly, his state court

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convictions.
A petition for writ of habeas corpus, under 28 U.S.C. § 2254, is the only means for

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challenging a state court criminal conviction in federal court. “[W]hen a state prisoner is challenging

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the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that

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he is entitled to immediate release ..., his sole federal remedy is a writ of habeas corpus.” Preiser v.

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Rodriguez, 411 U.S. 475, 500 (1973). However, a federal court petition for a writ of habeas corpus

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by a state prisoner can be granted only for violations of the constitution or laws of the United States;

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the argument in Gomez’s petition in this case is based completely on alleged of violation of the

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Nevada constitution. See 28 U.S.C. § 2254(a). Also, claims presented by a state prisoner in a federal

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habeas petition must first be asserted in state court; there is no indication that Gomez has asserted, in

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state court, any claim that his convictions are contrary to any federal constitutional provision or law.

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See 28 U.S.C. § 2254(b). Moreover, federal habeas petitions are governed by a one-year statute of

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limitations; it appears likely, from the information in the record in this case, that the one-year

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limitations period for Gomez to file a federal habeas petition, expired long ago. See 28 U.S .C. §

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2244(d). Nevertheless, if Gomez believes he is entitled to federal habeas corpus relief, he may file a

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new action -- a petition for writ of habeas corpus -- using the correct form petition for such an action,

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and providing all the information called for in that form petition.

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IT IS THEREFORE ORDERED that the Clerk of the Court shall separately file the

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documents entitled “Petitioners Writ Quo-Warranto and Supporting Memorandum, In Motion to

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Dismiss for Lack of Subject-Matter Jurisdiction” and “Notice of Petitioners Writ of Quo-Warranto

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and Supporting Memorandum” (both documents currently found attached to the notice at ECF

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No. 1).

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IT IS FURTHER ORDERED that petitioner’s Motion to Amend Writ Title (ECF No. 4) is
DENIED.

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IT IS FURTHER ORDERED that this action is DISMISSED.

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

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Dated this _____ day of December, 2015.
Dated this 5th day of January, 2016.

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UNITED STATES DISTRICT JUDGE
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