Lepley v. Filson et al

Filing 3

ORDER granting ECF No. 1 Application for Leave to Proceed in forma pauperis;clerk directed to file the petition ECF No. 1 - 1; petitioner to file show cause response by 12/29/2017. Signed by Judge Howard D. McKibben on 11/29/2017. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BRIAN EUGENE LEPLEY,

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Petitioner,
vs.

ORDER

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3:17-cv-00693-HDM-VPC

TIMOTHY FILSON, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s

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application (ECF No. 1) to proceed in forma pauperis and for initial review. The Court finds

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that petitioner is unable to pay the filing fee, and the pauper application therefore will be

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granted. On initial review, it appears that the Court lacks jurisdiction over the petition because

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it constitutes a successive petition. Petitioner therefore will be directed to show cause why

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the petition should not be dismissed without prejudice for lack of jurisdiction.
Background

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Petitioner Brian Lepley challenges the lifetime supervision imposed by his Nevada
judgments of conviction.
The record and order of dismissal in petitioner’s prior habeas action in No. 2:14-cv01575-JAD-GWF reflects the following state and federal procedural history.

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Petitioner originally was convicted, pursuant to a jury verdict, of one count of sexual

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assault; one count of open or gross lewdness; two counts of offering, attempting, or

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committing an unauthorized act relating to a controlled substance; five counts of possession

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of a controlled substance, and one count of intentional transmission of the human

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immunodeficiency virus.

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The original judgment of conviction was filed on May 6, 1998, and included, inter alia,
the following provision:
The Defendant shall be ordered to lifetime supervision to
commence after this term of imprisonment and period of release
on parole, pursuant to NRS 176.113.

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(No. 2:14-cv-01575, ECF No. 21-3, Exhibit 82.)

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On appeal, the Supreme Court of Nevada, in No. 32562 in that court, reversed the

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sexual assault conviction due to trial error, affirmed the conviction on the remaining counts,

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and remanded for a new trial on the sexual assault count.

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On remand, petitioner again was found guilty of sexual assault.

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On May 9, 2002, the state district court entered a judgment of conviction only on the

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sexual assault charge, leaving the May 6, 1998, judgment of conviction untouched. The

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judgment included, inter alia, the following provision:
Defendant having been convicted of a sexual offense listed
in NRS 176.0931, shall receive a special sentence of lifetime
supervision as a sex offender.

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(No. 2:14-cv-01575, ECF No. 23-22, Exhibit 153.)

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Thereafter, on August 9, 2010, the district court entered an amended judgment of

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conviction as to the May 9, 2002, judgment that gave petitioner presentence credit for 1404

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days. The amended judgment of conviction carried forward, inter alia, the above-quoted

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provision as to lifetime supervision. (ECF No. 1-1, at 27-30.)

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Petitioner has identified no other amended or corrected judgments of conviction filed
after August 9, 2010. 1

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On or about September 21, 2014, petitioner dispatched his federal petition in No. 2:14-

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cv-01575, challenging his custody under the above-referenced judgments. In Ground 1 of the

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Petitioner attached copies of the above-referenced judgments as exhibits to the current petition.
See ECF No. 1-1, at 13-18 & 24-30.

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amended petition in that matter, petitioner alleged, inter alia, that, as a result of the manner

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in which the multiple judgments were entered, his sentence or sentences had fully expired.

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In Ground 2 of the amended petition, he alleged, inter alia, that imposition of the special

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sentence of lifetime supervision violated ex post facto, due process, and double jeopardy

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constitutional protections because, inter alia, his offense allegedly occurred before certain

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Nevada state statutes providing for lifetime supervision were enacted. In Ground 3, he

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alleged, inter alia, that he was denied due process because Nevada did not have jurisdiction

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over the offenses because they occurred in California.

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By an order and judgment of dismissal entered on March 1, 2016, the Court dismissed

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the petition in No. 2:14-cv-01575 with prejudice as untimely. Petitioner filed a post-judgment

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motion, which was denied; and petitioner thereafter did not appeal the dismissal. The time

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to do so expired on or about May 12, 2016.

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In the current action, which was dispatched for filing on or about November 19, 2017,

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petitioner challenges his custody under the same judgments and again attacks in particular

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the special sentence of lifetime supervision. He claims, inter alia, that he was denied effective

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assistance of trial counsel and ex post facto constitutional protections because, inter alia, his

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offense occurred before certain statutes providing for lifetime supervision were enacted.

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Petitioner attaches with the current federal petition a copy of a July 12, 2017, order by

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the Supreme Court of Nevada, in No. 71687 in that court, affirming the denial of a petition for

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a writ of habeas corpus. The state supreme court construed the claims presented to that

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court at that time as arguing “that [petitioner] was improperly denied parole at this April 2016

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parole hearing and that his rights were denied by retroactive application of NRS 213.1245 and

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NRS 213.1214.” (ECF No. 1-1, at 45.) Petitioner acknowledges in his current federal petition

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that not all of the claims presented in the federal petition were presented to the state supreme

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court. (ECF No. 1-1, at 1.) The single ground in the current federal petition challenges the

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imposition of the special sentence of lifetime supervision in the judgments of conviction

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entered in his criminal case.

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Petitioner acknowledges that he has not sought and obtained authorization from the
Court of Appeals to file a second or successive petition. (ECF No. 1-1, at 3.)
Discussion

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Under 28 U.S.C. § 2244(b)(3), before a second or successive petition is filed in the

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federal district court, the petitioner must move in the court of appeals for an order authorizing

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the district court to consider the petition. A federal district court does not have jurisdiction to

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entertain a successive petition absent such permission. E.g., Burton v. Stewart, 549 U.S.

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147, 149 & 152-53 (2007). In the present petition, petitioner seeks to challenge his custody

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under the same judgments of conviction that he previously challenged in No. 2:14-cv-01575;

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and he in particular again challenges the special sentence of lifetime supervision imposed by

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said judgments. The present petition constitutes a second or successive petition because the

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prior federal petition was dismissed as untimely. See McNabb v. Yates, 576 F.3d 1028 (9th

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Cir. 2009). Petitioner accordingly must show cause why the petition should not be dismissed

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for lack of jurisdiction as a successive petition.

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IT THEREFORE IS ORDERED that petitioner’s application (ECF No. 1) to proceed in
forma pauperis is GRANTED and that petitioner shall not be required to pay the filing fee.

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IT FURTHER IS ORDERED that the Clerk of Court shall file the petition2 and that,

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within thirty (30) days of entry of this order, petitioner shall SHOW CAUSE in writing why the

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petition should not be dismissed for lack of jurisdiction as a successive petition. If petitioner

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does not timely respond to this order, the petition will be dismissed as a successive petition

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without further advance notice. If petitioner responds but fails to demonstrate that the petition

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is not subject to dismissal as a successive petition, the action will be dismissed.

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IT IS FURTHER ORDERED that all assertions of fact made by petitioner in response

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to this show-cause order must be detailed, must be specific as to time and place, and must

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be supported by competent evidence. The Court will not consider any assertions of fact that

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Nothing herein suggests that the petition is free of other deficiencies, including, but not limited to,
untimeliness under 28 U.S.C. § 2244(d).

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are not specific as to time and place, that are not made pursuant to a declaration under

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penalty of perjury based upon personal knowledge, and/or that are not supported by

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competent evidence filed by petitioner in the federal record. Petitioner thus must attach copies

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of all materials upon which he bases his argument that the petition should not be dismissed

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as a successive petition. Unsupported assertions of fact will be disregarded.

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DATED: November 29, 2017

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__________________________________
HOWARD D. MCKIBBEN
United States District Judge

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