Johnson v. State of Nevada et al

Filing 3

ORDER DISMISSING CASE : ECF No. #1 is denied and that this action is dismissed without prejudice to the filing of a new petitionin a new action with a properly completed pauper application. At certificate of appealability is denied. Clerk is directed to send petitioner forms and papers detailed herein. Clerk is further directed to enter judgment accordingly and close this case. Signed by Chief Judge Miranda M. Du on 5/8/2024. (For Distribution by law library.) (Attachments: #1 IFP Form, inst., copy 1, #2 IFP Form, inst., copy 2, #3 2254 form, inst., copy 1, #4 2254 form, inst., copy 2, #5 Copy of papers submitted)(Copies have been distributed pursuant to the NEF - DRM)

Rev. 6/2017

INFORMATION AND INSTRUCTIONS
FOR FILING A PETITION FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2254
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
You should follow these instructions carefully. The failure to do so may result in your
petition not being filed and considered by the court, or at least being delayed. If you add
additional pages, be sure to identify what is being continued or the number of the additional
ground(s).

A.

Information About the Petition for Writ of Habeas Corpus Form and Procedure:

1.
The petition for writ of habeas corpus form is designed to help you prepare a
petition seeking relief pursuant to 28 U.S.C. § 2254. Local Special Rule 3-1 requires the use
of the petition for writ of habeas corpus form by anyone not represented by counsel -- that is, if
they are proceeding pro se. For your petition to be considered by the District Court, it must be
typewritten or legibly handwritten. (See Local Rule IA 10-1.) DO NOT WRITE ON THE BACK
OF ANY OF THE PAGES. Any writing on the back of any page might not be considered by the
court. All information must be clearly and concisely written, only in the space provided on the
form, and only one line of writing per line provided. Do not write in the margins. If needed, you
may attach additional pages of standard letter-size paper to add further information about
grounds or to state additional grounds. Be sure you make clear to which grounds the
information on the additional pages applies.
2.
You must sign the petition, and your signature constitutes a certificate that: 1) you
have read the petition; 2) to the best of your knowledge, information, and belief formed after
reasonable inquiry, it is well grounded in fact and law; and 3) it is not being filed for any improper
purpose. You should review Rule 11 of the Federal Rules of Civil Procedure. Note also that Rule
11 provides for the imposition of sanctions if the petition is signed in violation of the rule.
Additionally, if a court finds that you have engaged in sanctionable conduct (such as pursuing a
frivolous or malicious action), and if you are under the control of the Nevada Department of
Corrections, you can be disciplined under the Code of Penal Discipline, which can include all
sanctions authorized under the Code, including punitive confinement and the loss of good time
credits. Lastly, the petition must be signed under penalty of perjury. A false statement or answer
to any question in the petition can subject you to federal prosecution (see 28 U.S.C. § 1746 and
18 U.S.C. § 1621) as well as state prosecution (see Nev. Rev. Stat. § 199.145).
3.
If you are seeking to proceed in forma pauperis, you will need to fill out the appropriate
federal forms and attach supporting documentation. Should the court determine that you do not
qualify to proceed in forma pauperis, the court will order you to pay the five dollar ($5.00) filing fee.
4.
If you are currently residing in a county that is part of the unofficial Northern Division,
then you should mail your petition to the Reno address. If you are currently residing in a county
that is part of the unofficial Southern Division, then you should mail your petition to the Las Vegas
address. The counties in the unofficial Southern Division are Clark, Esmeralda, Lincoln, and Nye.
All other counties are in the unofficial Northern Division. ( See Local Rule LR IA 1-6 and Local
Rule LR IA 1-8.) Once your case is filed, a copy will be sent to you by the clerk of court. When
you have finished writing your petition, you should mail only the original with the proper filing fee
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Rev. 6/2017

or an application to proceed in forma pauperis (see the separate "Information and Instructions for
Filing an Application to Proceed In Forma Pauperis" to determine whether you need to submit a
filing fee) to:
Clerk, U.S. District Court
District of Nevada
400 South Virginia Street
Room 301
Reno NV 89501

OR

Clerk, U.S. District Court
District of Nevada
333 Las Vegas Boulevard South
Room 1334
Las Vegas NV 89101

5.
Except for the initial petition and initial application to proceed in forma pauperis
submitted to commence an action, you must write the correct case number on the front page of
all documents you submit to the court. Once the respondents have appeared in the case, you
need not serve the respondents copies of documents you file in the case. Any document you file
after the respondents have appeared will be considered served on the respondents when it
appears on the district court docket.
6.
If you wish to have a file-stamped copy of any filed document returned to you, you
must furnish one additional copy of the document to the clerk with your filing.
7.
Exhibits should not be submitted with the petition. Instead, the relevant information
in an exhibit should be paraphrased in the petition. You should, however, attach to the petition
a copy of all final state court written decisions regarding the conviction you are challenging.
8.
You must immediately notify the clerk and the opposing party or their attorney in
writing of any change in your mailing address. (See LR IA 3-1.)
9.
If you need to change any of the information in the initial petition, you can only do
so by filing an amended petition, which must also be written on the petition for writ of habeas
corpus form. Local Rule LR 15-1 requires that any amended pleading be complete in itself,
without reference to any prior pleading. This is because an amended petition supersedes prior
petition. Consequently, the amended petition must contain all the grounds for relief that you wish
to pursue.
10. It is inappropriate to write a letter to any of the district judges, magistrate judges, or
the staff of any of the judicial officers. The only appropriate way to communicate with these
persons is by filing a written motion. The judges of this court, the clerk of court, deputy clerks and
other court staff are officers of the court, and as such they are prohibited from giving legal advice.
Questions of this nature should be directed to an attorney who is not a member of the court's staff.
B.

General Information About Petitions for Writ of Habeas Corpus:

1.
To be able to file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
you must be challenging the validity of a state court conviction and/or sentence, or the
computation of time toward the sentence, and you must be "in custody." Most petitioners meet
the "in custody" requirement because when they file their petition they are confined based on a
state court conviction. However, individuals on probation or parole are still "in custody" within
the meaning of the statute.
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Rev. 6/2017

2.
Only one judgment of conviction can be challenged in a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Therefore, if you have multiple judgments,
then each must be challenged in a separate petition.
For example, if you have two judgments of conviction, one from Clark County and the other
from Washoe County, then you would have to file two petitions. Also, if you have two judgments
of conviction from the same county, but each is from separate proceedings that resulted in two
judgments, then you have to file separate petitions (i.e., one for each judgment). But if you had
multiple charges or indictments that were tried together or that were part of a plea bargain, and
which resulted in a single judgment of conviction (even though there are multiple sentences), then
the validity of the conviction(s) and/or sentence(s) can be challenged in a single petition. The
reason only one petition is required in that case is because there is only one judgment of conviction.
3.
Because you are challenging the validity of a state court conviction and/or sentence
in a federal court, you need to first challenge the validity of the conviction and/or sentence in the
state courts. This is the "exhaustion" requirement. There are two ways to meet this requirement.
The first is to appeal from the judgment of the trial court. This is called a direct appeal. On the
direct appeal you should have argued every reason why you believe the conviction and/or
sentence is invalid. The second way to challenge the validity of the conviction and/or sentence
is to start a separate proceeding by filing a petition for writ of habeas corpus with the trial court.
( See § 34.720 - § 34.830 of the Nevada Revised Statutes.) Claims of ineffective assistance of
counsel generally will not be considered on a direct appeal. Instead, such claims usually must
be raised in a petition for writ of habeas corpus.
To meet the exhaustion requirement, you must fairly present your claims to the state
appellate court. Simply raising your claims in the trial court is not enough. You must give the
state appellate court an opportunity to rule on your claims, and you must present that opportunity
in accordance with state procedure. State procedure requires that you file a direct appeal from
the conviction and, if appropriate, a post-conviction petition for writ of habeas corpus in the trial
court followed by an appeal.
Exhaustion requires that you fairly present to the state courts all of your claims and the
facts that support each claim. If you present some claims to the state court, but present new
ones (or new supporting facts) in your federal petition that were not fairly presented to the state
court, then the new claims (or facts) are "unexhausted," and a federal court cannot grant you
relief based on these "unexhausted" claims. You can file a federal petition containing
unexhausted claims, but you will have to move to stay the petition to return to state court to fully
exhaust your federal petition.
4.
In a petition for writ of habeas corpus, the various reasons you contend the
conviction and/or sentence is invalid are stated in "grounds." Each ground in a federal petition
must contend that the conviction and/or sentence is invalid because it was obtained in violation
of a federal constitutional right or is contrary to federal law that is applicable to the states. A
federal court cannot review the validity of the conviction and/or sentence unless a federally
protected right is involved.
For example, a state court’s failure to follow state procedural rules, such as the
admissibility of evidence, is not something that can be reviewed in a federal petition, unless the
failure infringed upon a federally protected right.
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Rev. 6/2017

5.
You generally are entitled to federal review of your state court conviction and/or
sentence only one time. Once you have had the merits of your grounds reviewed by a federal
court, then you are limited in the ways in which to commence a second federal action challenging
the same conviction and/or sentence. A second action, after the first was reviewed on the merits,
is called a successive petition. Note that the successive petition is filed in a second action. An
amended petition filed in the first action is not a successive petition.
There are a few exceptions, that will allow successive petition to be reviewed on the merits.
Before you file a successive petition with this court, you will need to first get permission from the
Ninth Circuit Court of Appeals. If you are attempting to file a successive petition, you should
review 28 U.S.C. §§ 2244 and 2254 to see whether you will qualify.
6.
A federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 must be
filed within one year of the date on which your state conviction became final. The time begins to
run when the conviction is final; that is, when the direct appeal process is completed, and the
time for seeking certiorari in the United States Supreme Court has expired. Also, the time during
which a properly filed post-conviction petition for writ of habeas corpus is pending in the state
courts (both the trial court and the state appellate courts) is not counted towards the one year
deadline.
For example, if you waited four months after the direct appeal process before you filed
the petition for writ of habeas corpus in the state court, then you would have to file your federal
petition for writ of habeas corpus within eight months after the state post-conviction proceedings
were finished. If you fail to meet the one year deadline, then you may be forever barred from
having a federal court review the validity of your state court conviction and/or sentence.
7.
You do not have a constitutional right to the appointment of counsel in federal
habeas corpus proceedings. The court has the discretion whether to appoint the federal public
defender or other attorney to represent you in these proceedings. If you wish to have counsel
appointed, you need to file a motion in which you explain why you should have counsel.
C.

Completing the Petition for Writ of Habeas Corpus Form:

1.
Print your name and mailing address on the lines provided. If you have an inmate
number, be sure to write it on the line provided.
2.
Space is provided for your name and that of the person who is in charge of the
facility in which you are confined.
3.
If you have been sentenced to death and an execution date has been set, then state
the date and time of the scheduled execution.
4.
Fill in all of the requested information about your conviction and sentence in the
spaces provided. Be sure to write in the requested dates regarding state court proceedings, as
well as the date you mailed this petition. If you are in jail, prison, or some other type of
confinement that prevents you from being able to come to the courthouse to file the petition
yourself, then the date of mailing is the date you handed the petition to a correctional officer for
mailing to this court. This information is needed to determine whether you meet the one year filing
deadline.
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Rev. 6/2017

5.
The form provides space for asserting three grounds for relief. This is where
you specify how the conviction and/or sentence was obtained in violation of your constitutional
rights. If you are alleging more than three grounds, attach an additional page for each
additional ground (so that there is only one ground per page) and an additional page that
provides the information regarding exhaustion of that additional ground. You should make a
photocopy of pages 3 and 4 and re-number the ground. Number the additional pages
"8-A," "8-B," etc., and insert them immediately behind page 8.
6.
In each ground, you must identify which constitutional right was violated. You need
to identify which constitutional amendment was violated and which provision of that amendment.
For example, if you are alleging that your attorney was ineffective, you would state that your Sixth
Amendment right to the effective assistance of counsel was violated. In the space provided, you
need to state the facts that support your ground. Using the above example, you need to explain
what your attorney did, or did not do, that resulted in your being denied the right to the effective
assistance of counsel.
In order to avoid a claim that you did not fully exhaust a ground or the supporting facts,
you should not change which constitutional right you claim was violated nor add new facts that
were not presented to the state courts. For example, if in state court you contended in a specific
ground that your Fifth Amendment rights were violated but did not contend in that ground that
your Sixth Amendment rights were violated, then you should not assert a Sixth Amendment right
regarding that ground in this federal petition. If you do, the respondents may claim that the Sixth
Amendment claim in that ground is unexhausted.
7.
On the page following each ground, you need to explain when, where, and how
you presented the ground to the state courts. This information is needed to determine
whether there has been complete exhaustion. Remember, if you have not exhausted a
ground, a federal court cannot grant you relief based on that unexhausted ground.
8.
You must sign your name and write your inmate number (if you have one) on the
lines provided at the end of the form. The signature must be an original signature, not a
photocopy. Remember the warning at the beginning of these instructions about the requirements
of Rule 11 of the Federal Rules of Civil Procedure. If someone wrote the petition for writ of habeas
corpus for you (such as an inmate law clerk or "jailhouse lawyer"), then that person must write
their name on the line next to your signature.

Page 5

Name
Inmate Number
Place of Confinement
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

, Petitioner,
(Full Name)
vs.
, Respondent,
(Name of Warden, Superintendent, jailor or
authorized person having custody of petitioner)
and
The Attorney General of the State of Nevada.

)
)
) CASE NO.
)
(To be supplied by the clerk)
)
)
)
PETITION FOR A
)
WRIT OF HABEAS CORPUS
)
PURSUANT TO 28 U.S.C. § 2254
)
BY A PERSON IN STATE CUSTODY
)
(NOT SENTENCED TO DEATH)

----------------------------------------------1.

Name and location of court, and name of judge that entered the judgment of conviction you are
challenging:
.

2.

Full date judgment of conviction was entered:

3.

Did you appeal the conviction?

4.

Did you file a petition for post-conviction relief or petition for habeas corpus in the state court?
Yes

_Yes

_/

/_

(month/day/year).

No. Date appeal decided:

_/

/_

.

No. If yes, name the court and date the petition was filed:
/

/

. Did you appeal from the denial of the

petition for post-conviction relief or petition for writ of habeas corpus?
the appeal was decided:

_/

/_

presented to the state supreme court?

Yes

No. Date

. Have all of the grounds stated in this petition been
_Yes

No. If no, which grounds have not?
.

5.

Is this the first federal petition for writ of habeas corpus challenging this conviction?
No. If no, what was the prior case number?
prior action filed?

_Yes

. In what court was the
. Was the prior action

Page 1

denied on the merits or
decision:
Yes

_/

/_

dismissed for procedural reasons (check one)? Date of

. Are any of the issues in this petition raised in the prior petition?

No. If the prior case was denied on the merits, has the Ninth Circuit Court of

Appeals given you permission to file this successive petition?
6.

Yes

No.

Do you have any petition, application, motion, or appeal (or by any other means) now pending
in any court regarding the conviction that you are challenging in this action?

_Yes

No.

If yes, state the name of the court and the nature of the proceedings:
.
7.

Case number of the judgment of conviction being challenged:

.

8.

Length and terms of sentence(s):

.

9.

Start date and projected release date:

10.

What was (were) the offense(s) for which you were convicted?:

.

.
11.

What was your plea?

Guilty

Not Guilty

Nolo Contendere. If you pleaded guilty

or nolo contendere pursuant to a plea bargain, state the terms and conditions of the
agreement:
.
12.

Who was the attorney that represented you in the proceedings in state court? Identify
whether the attorney was appointed, retained, or whether you represented yourself pro se
(without counsel).
Name of Attorney

Appointed

Retained

Pro Se

Arraignment and Plea

_

_

Trial/Guilty Plea

_

_

Sentencing

_

_

Direct Appeal

_

_

1st Post-Conviction Petition

_

_

Appeal from Post-Conviction

_

_

2nd Post-Conviction Petition

_

_

Appeal from 2nd Post-

_

_

Conviction

Page 2

State concisely every ground for which you claim that the state court conviction and/or
sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach
up to two extra pages stating additional grounds and/or supporting facts. You must raise in this
petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will
likely be barred from being litigated in a subsequent action.
GROUND 1
I allege that my state court conviction and/or sentence are unconstitutional, in violation of my
Amendment right to

, based on these facts:

.
Exhaustion of state court remedies regarding Ground 1:
<

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?

_Yes

No. If no, explain why not:
.
<

First Post-Conviction:
Page 3

Did you raise this issue in a petition for post-conviction relief or state petition for habeas corpus?
Yes

No. If no, explain why not:
.

If yes, name of court:

. Date petition filed:

receive an evidentiary hearing?
Yes

_Yes

/

/

. Did you

No. Did you appeal to the Nevada Supreme Court?

No. If no, explain why not:
.

If yes, did you raise this issue? _

Yes

No. If no, explain why not:
.

<

Second Post-Conviction:

Did you raise this issue in a second petition for post-conviction relief or state petition for habeas
corpus?

Yes

No. If no, explain why not:
.

If yes, name of court:

. Date petition filed:

receive an evidentiary hearing?
Yes

_Yes

/

/

. Did you

No. Did you appeal to the Nevada Supreme Court?

No. If no, explain why not:
.

If yes, did you raise this issue? _

Yes

No. If no, explain why not:
.

<

Other Proceedings:

Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence
overturned based on this issue (such as administrative remedies)?

_Yes

No. If yes,

explain:
.

State concisely every ground for which you claim that the state court conviction and/or
sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach
up to two extra pages stating additional grounds and/or supporting facts. You must raise in this
petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will
likely be barred from being litigated in a subsequent action.
GROUND 2
I allege that my state court conviction and/or sentence are unconstitutional, in violation of my
Amendment right to

, based on these facts:

Page 4

.
Exhaustion of state court remedies regarding Ground 2:
<

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?

_Yes

No. If no, explain why not:
.
<

First Post-Conviction:

Did you raise this issue in a petition for post-conviction relief or state petition for habeas corpus?
Yes

No. If no, explain why not:
.

If yes, name of court:
receive an evidentiary hearing?
Yes

. Date petition filed:
_Yes

/

/

. Did you

No. Did you appeal to the Nevada Supreme Court?

No. If no, explain why not:
.

If yes, did you raise this issue? _

Yes

No. If no, explain why not:
.

<

Second Post-Conviction:
Page 5

Did you raise this issue in a second petition for post-conviction relief or state petition for habeas
corpus?

Yes

No. If no, explain why not:
.

If yes, name of court:

. Date petition filed:

receive an evidentiary hearing?
Yes

_Yes

/

/

. Did you

No. Did you appeal to the Nevada Supreme Court?

No. If no, explain why not:
.

If yes, did you raise this issue? _

Yes

No. If no, explain why not:
.

<

Other Proceedings:

Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence
overturned based on this issue (such as administrative remedies)?

_Yes

No. If yes,

explain:
.

State concisely every ground for which you claim that the state court conviction and/or
sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach
up to two extra pages stating additional grounds and/or supporting facts. You must raise in this
petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will
likely be barred from being litigated in a subsequent action.
GROUND 3
I allege that my state court conviction and/or sentence are unconstitutional, in violation of my
Amendment right to

, based on these facts:

Page 6

.
Exhaustion of state court remedies regarding Ground 3:
<

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?

_Yes

No. If no, explain why not:
.
<

First Post-Conviction:

Did you raise this issue in a petition for post-conviction relief or state petition for habeas corpus?
Yes

No. If no, explain why not:
.

If yes, name of court:

. Date petition filed:

receive an evidentiary hearing?
Yes

_Yes

/

/

. Did you

No. Did you appeal to the Nevada Supreme Court?

No. If no, explain why not:
.

If yes, did you raise this issue? _

Yes

No. If no, explain why not:
.

<

Second Post-Conviction:

Did you raise this issue in a second petition for post-conviction relief or state petition for habeas
corpus?

Yes

No. If no, explain why not:
.

If yes, name of court:
receive an evidentiary hearing?
Yes

. Date petition filed:
_Yes

/

/

. Did you

No. Did you appeal to the Nevada Supreme Court?

No. If no, explain why not:
.

If yes, did you raise this issue? _

Yes

No. If no, explain why not:
.

<

Other Proceedings:
Page 7

Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence
overturned based on this issue (such as administrative remedies)?

_Yes

No. If yes,

explain:
.
Date you are mailing (or handing to correctional officer) this petition to this court:
___/___/____. Attach to this petition a copy of all state court written decisions regarding this
conviction.
WHEREFORE, petitioner prays that the court will grant him such relief to which he is entitled
in this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by a person in state
custody.

(Name of person who wrote this complaint if not Petitioner)

(Signature of Petitioner)

(Date)

_
(Signature of attorney, if any)

_
_
_
(Attorney's address & telephone number)

DECLARATION UNDER PENALTY OF PERJURY
I understand that a false statement or answer to any question in this declaration will subject
me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF
THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See
28 U.S.C. § 1746 and 18 U.S.C. § 1621.
Executed at

on _
(Location)

.
(Date)

(Signature)

(Inmate number)

Page 8