Fenton v. Baca et al

Filing 6

ORDER - Clerk shall file the petition. Clerk shall send P 2254 form with instructions. (Mailed 7/1/7/2017.) "AMENDED" petition due by 8/16/2017. Clerk shall add AG as counsel for Rs. Clerk shall e-serve Rs a copy of the petition and this order. (E-service 7/17/2017.) Rs' notice of appearance due by 8/6/2017. Signed by Judge Miranda M. Du on 7/17/2017. (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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***

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JOHN MARK FENTON,

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Petitioner,

ORDER

v.

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Case No. 3:16-cv-00749-MMD-VPC

ISIDRO BACA, et al.,
Respondents.

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Petitioner has paid the filing fee. The Court has reviewed the petition for a writ of

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habeas corpus pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the

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United States District Courts. Petitioner will need to file an amended petition.

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Petitioner was convicted of battery resulting in substantial bodily harm on a person

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60 years of age or older, burglary, robbery of a person 60 years of age or older, and grand

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larceny of a motor vehicle. The Nevada Supreme Court affirmed his conviction on direct

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appeal. Petitioner then filed a post-conviction habeas corpus petition in the state district

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court. To the best of this Court’s knowledge, that petition is still pending in the state district

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court.

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Grounds 1 through 6 of the petition suffer from the same problem. In each ground,

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petitioner alleges both an error by the state courts and a claim of ineffective assistance

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of counsel. These are legally distinct claims, and they should be alleged in separate

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grounds. See Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). Furthermore, petitioner

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appears to have not exhausted his available state-court remedies for the ineffective-

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assistance claims, required by 28 U.S.C. § 2254(b), because in Nevada claims of

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ineffective assistance of counsel must be raised in a post-conviction habeas corpus

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petition, and that petition is still pending in the state district court. The Court will not require

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respondents to pick out which sentences in grounds 1 through 6 are not exhausted; it

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would be time consuming and prone to error. Petitioner will need to file an amended

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petition that keeps his claims of court error and his claims of ineffective assistance of

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counsel in distinct grounds.

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For grounds 7 through 22 of the federal petition, petitioner incorporates by

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reference the grounds he raises in his supplemental post-conviction habeas corpus

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petition filed in the state district court. That supplemental state petition is attached as

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Exhibit B to the current federal petition. Because the state post-conviction proceedings

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are still pending, any claim that petitioner has raised only in those proceedings, and not

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before the Nevada Supreme Court on direct appeal, is unexhausted.

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In ground 7, petitioner complains that his attorneys in his state post-conviction

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proceedings have failed to raise claims that his counsel in the criminal proceedings had

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a conflict of interest. Petitioner does not have a right of effective assistance of post-

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conviction counsel. Coleman v. Thompson, 501 U.S. 722, 752 (1991). If petitioner wants

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to present a claim that his counsel in the criminal proceedings had a conflict of interest,

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then in an amended petition he needs to remove any reference of post-conviction

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counsel’s failure to raise that claim in the state habeas corpus petition.

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Ground 11 has the same problem as grounds 1 through 6. Most of the ground

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alleges that the judge sentenced petitioner incorrectly. Then, at the very end, petitioner

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claims that appellate counsel failed to raise the issue on direct appeal. If petitioner is

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intending to present a claim of trial-court error and a claim of ineffective assistance of

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appellate counsel, then he needs to present them in separate grounds.

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Ground 12 has the same problem as grounds 1 through 6. Most of the ground is a

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claim that a police officer behaved improperly, but interspersed with those allegations are

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claims that trial counsel failed to bring out this information in trial. Again, petitioner needs

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to allege these claims in separate grounds.

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Ground 13 has multiple problems. First, similar to grounds 1 through 6, 11, and 12,

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it contains both claims of prosecutorial misconduct and claims of ineffective assistance of

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counsel. Petitioner needs to allege these claims in separate grounds. Second, petitioner

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complains that his state post-conviction counsel did not allege this ground correctly.

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Petitioner does not have a right to effective assistance of post-conviction counsel, and he

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needs to omit this claim in the amended petition.

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Ground 16 is a claim of ineffective assistance of post-conviction counsel. Petitioner

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does not have a right to effective assistance of post-conviction counsel, and he needs to

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omit this claim in the amended petition.

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It is further ordered that the Clerk of the Court file the petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

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It is further ordered that the Clerk of the Court send petitioner a petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Petitioner will have

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thirty (30) days from the date that this order is entered in which to file an amended petition

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to correct the noted deficiencies. Neither the foregoing deadline nor any extension thereof

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signifies or will signify any implied finding of a basis for tolling during the time period

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established. Petitioner at all times remains responsible for calculating the running of the

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federal limitation period under 28 U.S.C. § 2244(d)(1) and timely asserting claims. Failure

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to comply with this order will result in the dismissal of grounds 1 through 7, 11, 12, 13,

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and 16 from this action.

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It is further ordered that petitioner clearly title the amended petition as such by

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placing the word “AMENDED” immediately above “Petition for a Writ of Habeas Corpus

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Pursuant to 28 U.S.C. § 2254” on page 1 in the caption, and Petitioner must place the

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case number, 3:16-cv-00749-MMD-VPC, above the word “AMENDED.”

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It is further ordered that the Clerk add Adam Laxalt, Attorney General for the State
of Nevada, as counsel for respondents.
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It is further ordered that the Clerk electronically serve upon respondents a copy of

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the petition and this order. Respondents’ counsel must enter a notice of appearance

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herein within twenty (20) days of entry of this order, but no further response will be

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required from respondents until further order of the Court.

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DATED THIS 17th day of July 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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