Allen v. State of Nevada, et al

Filing 9

ORDER that this action shall be dismissed without prejudice; that a certificate of appealability is denied; Clerk directed add AG as counsel for respondents and e-serve this order (e-service on 05/24/2018); no response is required from respondents; Clerk directed to send Petitioner a copy of all his papers in this action (mailed to p on 05/24/2018); Clerk directed to enter final judgment and dismissing this action without prejudice. Signed by Judge Miranda M. Du on 5/24/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

9 GENE A. H. ALLEN,
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Petitioner,

ORDER

v.

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Case No. 3:18-cv-00237-MMD-WGC

STATE OF NEVADA, et al.,
Respondents.

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Petitioner has filed a habeas petition under 28 U.S.C. § 2241 without properly

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commencing the action by paying the filing fee or filing a complete pauper application.

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Although Petitioner submitted an application and a financial certificate, he did not submit

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his inmate account statements for the past six months. LSR 1-1 & 1-2.

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Furthermore, the petition is subject to dismissal due to multiple jurisdictional
defects.

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First, Petitioner is in custody pursuant to a state court judgment of conviction. 1

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Accordingly, the proper procedural vehicle for his petition is 28 U.S.C. § 2254, not §

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2241. Montue v. Dep’t of Corr., 279 Fed. App’x 506, 507 (9th Cir. 2008) (unpublished

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disposition).

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Second, the petition reflects no basis for Petitioner to bring an action against the

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U.S. Attorney General, Jeff Sessions. Although Petitioner claims to be subject to an ICE

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1See

http://167.154.2.76/inmatesearch/form.php (search for Petitioner indicates
that he is still serving his state court sentence for lewdness with a minor); ECF No. 1 at
2 (indicating that Petitioner was denied parole on April 7, 2017).

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detainer, any challenge to that hold is not cognizable in habeas. 2 See Bederian v.

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Apker, 2017 WL 880416, at *1 (E.D. Cal. Mar. 6, 2017); Kha Minh Dang v. Short, 2016

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WL 1070811, at *3 (D. Or. Mar. 16, 2016).

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Third, this Court does not have jurisdiction over an action brought against the

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State of Nevada. The state sovereign immunity recognized by the Eleventh Amendment

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bars suit against the State in federal court, regardless of the relief sought. See, e.g.,

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Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984).

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Fourth, Petitioner appears to be asserting a violation of his Sixth Amendment

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right to counsel based on the performance of his court-appointed attorney in another,

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recently dismissed federal habeas proceeding, Case No. 3:14-cv-510-RCJ-VPC. (See

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ECF No. 1). In Case No. 3:14-cv-510, Petitioner challenged the Nevada Parole Board’s

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denial of his release on parole. Petitioner was appointed counsel for that petition, and

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he argues in this petition that counsel was not acting in his best interests and refused to

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raise meritorious claims. However, there is no right to counsel in noncapital federal

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habeas proceedings, and thus the right to counsel guaranteed by the Sixth Amendment

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does not apply to Petitioner’s federal habeas petition. Bonin v. Vasquez, 999 F.2d 425,

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430 (9th Cir. 1993). Petitioner’s claim in this respect is therefore not cognizable in this

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action.

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Fifth, Petitioner argues that his right to send mail and access the courts has been

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violated in connection with correspondence he sent to his attorney in Case No. 3:14-cv-

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510-RCJ-VPC. Apart from the fact Petitioner does not identify who violated these rights,

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such violations are also not cognizable in habeas as success on those claims would not

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necessarily lead to Petitioner’s immediate or earlier release. See Nettles v. Grounds,

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830 F.3d 922, 930-31 (9th Cir. 2016).

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Sixth, Case No. 3:14-cv-510-RCJ-VPC was dismissed with prejudice for failure to

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prosecute. (See ECF No. 98 in Case No. 3:14-cv-510-RCJ-VPC). Thus, to the extent

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It does not actually appear that Petitioner is challenging the detainer, however.
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the petition may be read to assert a challenge to Petitioner’s denial of parole, the

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petition is successive. The Court lacks jurisdiction to consider a successive absent

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authorization by the Court of Appeals. 28 U.S.C. § 2244(b).

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Finally, to the extent Petitioner intends his arguments as a basis for

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reconsideration of the dismissal of his petition in Case No. 3:14-cv-510-RCJ-VPC, those

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arguments are more properly raised in that case and not in a separate habeas action.

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It therefore is ordered that this action shall be dismissed without prejudice.

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It further is ordered that a certificate of appealability is denied. Jurists of reason

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would not find debatable whether the Court was correct in its dismissal of this action, for

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the reasons discussed herein.

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It further is ordered, pursuant to Rule 4 of the Rules Governing Section 2254

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Cases, that the Clerk shall make informal electronic service upon respondents by

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adding Nevada Attorney General Adam P. Laxalt as counsel for respondents and

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directing a notice of electronic filing of this order to his office. No response is required

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from respondents other than to respond to any orders of a reviewing court.

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The Clerk of Court shall send Petitioner a copy of all his papers in this action.

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The Clerk of Court shall enter final judgment accordingly, dismissing this action

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without prejudice.
DATED THIS 24th day of May 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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