Anderson v. Eighth Judicial District Court et al

Filing 6

ORDER that the petition will be dismissed without prejudice, but without entry of final judgment; Amended Petition due by 7/20/2019; Clerk directed to send Petitioner two copies of a § 2254 form packet along with a copy of the papers that he filed (Mailed to P along with instructions on 6/21/2019). Signed by Judge Miranda M. Du on 6/20/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BLAKE L. ANDERSON,

Case No. 3:19-cv-00139-MMD-CBC
Petitioner,

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ORDER

v.
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EIGHTH JUDICIAL DISTRICT COURT, et
al.,

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Respondents.
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This action brought by Blake Anderson (“Petitioner” or “Anderson”) comes before

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the Court for initial review under 28 U.S.C. § 1915(e)(2).

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I.

INTRODUCTION

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Anderson has filed a petition for a writ of mandamus or prohibition under 28 U.S.C.

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§ 1651 against the State of Nevada and its Eight Judicial District Court seeking to overturn

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a judgment of conviction entered in Nevada state district court. (ECF No. 1.) A filing fee

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has been paid. 1 Following initial review, the Court concludes that Anderson’s papers are

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subject to multiple substantial defects.

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1The

Court proceeds on the assumption that the $5.00 filing fee for a habeas
petition is applicable to this action even though Anderson has filed a petition for a writ of
mandamus or prohibition pursuant to 28 U.S.C. § 1651 rather than a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. The Court has stated to Anderson in two
somewhat similar prior actions that the applicable filing fee would be $5.00. See No. 3:18cv-00414-MMD-CBC, ECF No. 11 (D. Nev. Oct. 05, 2018); No. 2:19-cv-00273-JAD-VCF,
ECF No. 3 (D. Nev., Feb. 19, 2019). Cf. Washington v. Los Angeles County Sheriff’s
Dept., 833 F.3d 1048 (9th Cir. 2016) (two prior dismissed federal mandamus actions that
had sought to challenge a state court conviction did not constitute “a civil action” so as to
constitute “strikes” for purposes of the three-strikes rule in 28 U.S.C. § 1915(g)); but see
28 U.S.C. § 1914(a) (“The clerk of each district court shall require the parties instituting
any civil action, suit or proceeding in such court, whether by original process, removal or
otherwise, to pay a filing fee of $350, except that on application for a writ of habeas corpus
the filing fee shall be $5.”) (emphasis added).

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II.

DISCUSSION

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A. Eleventh Amendment Immunity

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First, a federal district court does not have jurisdiction over an action brought

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against the State of Nevada or the Eighth Judicial District Court for the State of Nevada.

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Petitioner may not proceed directly against the State of Nevada or an arm of the State –

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such as the state district court – in federal court due to the state sovereign immunity

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recognized by the Eleventh Amendment. E.g., O'Connor v. State of Nevada, 686 F.2d

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749 (9th Cir. 1982) (state district court). State sovereign immunity bars an action against

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the state or an arm of the state in federal court regardless of the relief sought. E.g.,

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Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101–02 (1984).

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B. No Appellate Jurisdiction Over the State Courts

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Second, a federal district court does not have appellate jurisdiction over a state

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court, whether by direct appeal, mandamus, prohibition, and/or an exercise of supervisory

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jurisdiction. See, e.g., Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Bianchi v.

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Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003); see also Demos v. United States District

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Court, 925 F.2d 1160, 1161 (9th Cir. 1991) (federal court of appeals did not have

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jurisdiction to issue a writ of mandamus to a state court). If Petitioner wants to seek

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collateral review of his conviction in federal court, he must file a timely petition for a writ

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of habeas corpus under 28 U.S.C. § 2254, not a petition for a writ of mandamus or

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prohibition under 28 U.S.C. § 1651. 2

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C. Heck Bar

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Third, to the extent that Petitioner challenges his judgment of conviction other than

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through a habeas petition, the civil action is barred under Heck v. Humphrey, 512 U.S.

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477 (1994). An inmate in custody pursuant to a judgment of conviction may not pursue

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claims that necessarily challenge the validity of that conviction in a federal civil action

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other than in a federal habeas action. Id.

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2The

All Writs Act, 28 U.S.C. § 1651, does not provide an independent basis for
jurisdiction. Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 33–34 (2002).
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D. Opportunity to Recharacterize and Amend

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Given the multiple substantial defects presented, the petition for a writ of

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mandamus or prohibition will be dismissed without prejudice, but without entry of final

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judgment. Anderson will have 30 days within which to recharacterize his request for relief

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and file an amended petition that, inter alia: (a) instead seeks a writ of habeas corpus; (b)

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is filed on the Court’s required § 2254 petition form; and (c) names his immediate physical

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custodian, i.e., the warden of his facility, as a respondent.

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Anderson should note that if he – despite the dismissal of his petition for a writ of

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mandamus or prohibition – tries to simply use the habeas petition form as a means to

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pursue instead a mandamus petition, 3 final judgment will be entered dismissing this

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action, for the reasons assigned herein. Anderson’s continuing efforts, across multiple

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actions, to pursue a petition for a writ of mandamus by this Court directed to the state

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courts are completely frivolous. His only available remedy is in habeas; but if he chooses

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not to pursue that remedy herein, the action simply will be dismissed by a final judgment.

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Recharacterization of a pro se litigant’s pleadings should occur only after notice

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and an opportunity for the litigant to decide how he wishes to proceed. See, e.g., Castro

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v. United States, 540 U.S. 375, 381–83 (2003); Nettles v. Grounds, 830 F.3d 922, 935–

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36 (9th Cir. 2016). Anderson is informed that if he seeks relief under § 2254, his action

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will be subject to all rules applicable to § 2254 petitions, including, inter alia, the

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exhaustion requirement, abstention doctrine, 4 the one-year limitation period in 28 U.S.C.

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§ 2244(d), 5 and the restriction on second or successive petitions. Generally, if a federal

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habeas petition is dismissed with prejudice, such as on the merits or as time-barred, the

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3Cf.

No. 3:18-cv-00502-HDM-WGC, ECF No. 12.

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e.g., Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); Carden v.
State of Montana, 626 F.2d 82, 83–85 (9th Cir. 1980); Davidson v. Klinger, 411 F.2d 746
(9th Cir. 1969). A state court direct appeal is part of the original state criminal proceedings
for purposes of abstention. E.g., supra Sherwood. Anderson’s direct appeal currently is
pending in the state courts. Abstention doctrine is not limited to habeas actions.
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at all times remains responsible for calculating all applicable state and
federal limitations periods and timely and properly seeking appropriate relief in an
appropriate court or courts. The Court expresses no opinion in this regard.
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petitioner will not be able to pursue a later federal habeas petition. He thus could be

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barred from, inter alia, pursuing additional claims in a later petition. See 28 U.S.C. §

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2244(b).

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On the other hand, while it is to an extent Petitioner’s choice as to how he wishes

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to proceed, if his final choice is to instead pursue a petition for a writ of mandamus or

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prohibition, then, again, final judgment will be entered dismissing this action without

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prejudice, for the reasons assigned herein.
Petitioner can choose which type of petition that he wishes to pursue, but he cannot

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choose the consequences that follow from his choice.
III.

CONCLUSION
It is therefore ordered that the petition will be dismissed without prejudice, but

without entry of final judgment.

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It is further ordered that Petitioner will have 30 days within which to dispatch an

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amended petition for a writ of habeas corpus to the Clerk for filing. If he does not timely

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do so, final judgment will be entered dismissing this action without prejudice. If Petitioner

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seeks to further pursue a petition for a writ of mandamus or prohibition, including by

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presenting a petition for a writ of mandamus or prohibition on a § 2254 petition form, final

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judgment will be entered dismissing this action without prejudice.

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It is further ordered that, on any amended petition filed, Petitioner must clearly

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identify the pleading as an amended petition by writing the case number in the space

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provided on page 1 of the form and writing “Amended” in the space under the case

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number.

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The Clerk will send Petitioner two copies of a § 2254 form packet along with a copy
of the papers that he filed.
DATED THIS 20th day of June 2019.

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________________________________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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