O'Keefe v. LeGrand et al

Filing 3

ORDERED that this action is DISMISSED. IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Judge Howard D. McKibben on 8/10/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRIAN KERRY O’KEEFE,

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Petitioner,

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vs.

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ROBERT LeGRAND, et al.,

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3:16-cv-00471-HDM-VPC

Respondents.

ORDER

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_________________________________/

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This action is a petition for a writ of habeas corpus by Brian Kerry O’Keefe, a Nevada

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prisoner. O’Keefe initiated this action on August 8, 2016, by filing a habeas corpus petition, along

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with three exhibits (ECF No. 1). O’Keefe paid the filing fee.

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The Court has reviewed O’Keefe’s petition, pursuant to Rule 4 of the Rules Governing

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Section 2254 Cases in the United States District Courts, and determines that it is plainly without

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merit, and subject to summary dismissal.

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O’Keefe petitions for a writ of habeas corpus under 28 U.S.C. § 2241. See Petition for Writ

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of Habeas Corpus (ECF No. 1), p. 1. His petition is largely incomprehensible. As the court

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understands it, he complains of the Nevada Supreme Court’s handling of his appeal and his attempt

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to seek certiorari in the United States Supreme Court following the conclusion of that appeal. See id.

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at 2-3, 6-8. As the court understands O’Keefe’s petition, he asserts that the Nevada Supreme Court’s

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handling of his appeal and his petition for certiorari affected the running of the statute of limitations

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under 28 U.S.C. § 2244(d), with respect to some unspecified claim he would make in federal court.

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See id. O’Keefe does not, however, articulate any viable claim that he is held in custody in violation

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of the constitution, laws, or treaties of the United States. See id.; see also 28 U.S.C. § 2241.

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Moreover, the court takes notice that O’Keefe already has a petition for writ of habeas corpus

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pending in this court, in Case Number 3:14-cv-00477-RCJ-VPC. In that case, as in this case,

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O’Keefe seeks relief from his conviction and sentence in Case Number 08-C250630 in Nevada’s

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Eighth Judicial District Court. See Petition for Writ of Habeas Corpus (ECF No. 1), p. 1; Amended

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Petition for Writ of Habeas Corpus, ECF No. 7 in Case No. 3:14-cv-00477-RCJ-VPC, p. 2. The

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record in Case Number 3:14-cv-00477-RCJ-VPC reveals that on July 27, 2016, the Ninth Circuit

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Court of Appeals remanded the case to this court for further proceedings, and the case is now

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pending in this court. See Memorandum, ECF No. 30 in Case Number 3:14-cv-00477-RCJ-VPC. It

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appears that any claim by O’Keefe that his custody in state prison is contrary to federal law -- and

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any argument regarding the application of the statute of limitations to any such claim -- must be

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made in that action.

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IT IS THEREFORE ORDERED that this action is DISMISSED.

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IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability.

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

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Dated this 10th day of August, 2016.

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UNITED STATES DISTRICT JUDGE
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