Clemons v. Williams
| Decision Date | 26 December 2012 |
| Docket Number | 2:11-cv-01442-PMP-GWF |
| Parties | DE'MARIAN CLEMONS, Petitioner, v. BRIAN E. WILLIAMS, SR., et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a state prisoner, is proceeding pro se. Before the court is respondents' motion to dismiss (ECF #19). Petitioner has opposed the motion (ECF #22).
Preliminarily, the court turns to two other motions: petitioner's ex parte motion for appointment of counsel (ECF #23) and petitioner's motion for summary judgment (ECF #24).
With respect to petitioner's motion for appointment of counsel (ECF #23), there is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838(1984). However, counsel must be appointed if the complexities of the case are such that denial of counsel would amount to a denial of due process, and where the petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The court denied an earlier motion for appointment of counsel by petitioner in this case and concluded that the petition on file in this action appears sufficiently clear in presenting the issues that petitioner wishes to raise (ECF #3). The court reiterates that the claims in this case are not especially complex. Therefore, petitioner's motion for counsel shall be denied.
Next, petitioner has filed a motion for summary judgment (ECF #24). Respondents opposed the motion (ECF #26), and petitioner replied (ECF #27). Petitioner argues that respondents failed to respond to his "amended grounds" and that they failed to file a reply brief to his opposition to the motion to dismiss the petition (ECF #24 at 1-2). Petitioner's arguments are without merit. Pursuant to the court's order as well as to Rule 4 of the Rules Governing Habeas Corpus Cases respondents filed their initial responsive pleading, a motion to dismiss the petition on various bases. Further, while respondents had the option to file a reply to petitioner's opposition to the motion to dismiss, they are not required to do so. The Local Rules of Civil Practice merely provide the timeline for filing a reply to an opposition to a motion. LR 7-2 ©. While the failure to file an opposition to a motion shall constitute a consent to the granting of that motion (LR 7-2 (d)), the failure to file a reply does not so operate. Accordingly, petitioner's motion for summary judgment is baseless and is denied.
The court now turns to respondents' motion to dismiss (ECF #19).
On April 24, 2009, the Las Vegas Justice Court filed in the Eighth Judicial District Court its bind-over packet which contained the State's April 7, 2009 Amended Criminal Complaint that charged petitioner with eight felonies and charged his co-defendant with six felonies. Both defendants were charged with 1) two counts of Attempted Murder with Use of a Deadly Weapon; 2) Conspiracy to Commit Murder; 3) Battery with Use of a Deadly Weapon causing Substantial Bodily Harm ("SBH");4) Discharging a Firearm out of a Motor Vehicle; and 5) Discharging a Firearm at or into a Structure, Vehicle, Aircraft or Watercraft (exhibits to motion to dismiss, ECF #19, ex. 2).1
On April 22, 2009, petitioner and his co-defendant unconditionally waived their preliminary hearings. His co-defendant agreed to plead guilty to two felonies: one count of Battery with Use of a Deadly Weapon with SBH and one count of Discharging a Firearm at or into a Structure; the negotiation was contingent upon petitioner accepting the plea negotiations in this case. Petitioner agreed to plead guilty to three felonies: Battery with Use of a Deadly Weapon with SBH, Discharging a Firearm at or into a Structure, and Possession of a Firearm by an Ex-Felon. The State in petitioner's negotiation agreed that: 1) it would not oppose the ex-felon count running concurrently with the Battery with Use causing SBH and the Discharging Firearm into a Structure, but retained the full right to argue that the Discharging a Firearm count should run consecutively to the Battery with Use causing SBH count; 2) it would not seek habitual criminal treatment; and 3) it would not refer the case to the federal government for prosecution. The negotiation was contingent upon petitioner's co-defendant accepting the negotiations in his case (ex. 1).
On April 28, 2009, petitioner was charged by way of an Information with the above three felonies (ex. 3). On April 29, 2009, pursuant to the guilty plea agreement, petitioner pled to the three felonies; the court sentenced him on count 1 Battery with Use of Deadly Weapon with SBH to 35-156 months, on count 2 Discharging a Firearm at or into a Structure to 13-60 months to run consecutively to count 1, and on count 3 Possession of a Firearm by an Ex-Felon to 13-60 months to run concurrently with counts 1 and 2, with 143 days credit for time served. On August 7, 2009, the judgment of conviction was entered (ex.'s 4, 5, 7). Petitioner did not appeal the judgment of conviction.
On August 5, 2009, petitioner filed a motion for sentence modification (ex. 6), which the State opposed (ex. 8), and the court denied (ex. 13). Petitioner did not appeal. On August 26, 2009, petitioner filed a motion to withdraw plea agreement (ex. 9), which the State opposed (ex. 10), and thecourt denied (ex. 21). Petitioner did not appeal.
On September 8, 2009, petitioner filed a motion for dismissal of charges (ex. 11), which the State opposed (ex. 17). Petitioner withdrew this motion because it was part of a postconviction petition that he had since filed (see ex. 29). On September 11, 2009, petitioner filed his second motion for sentence modification (ex. 12), which the State opposed (ex. 14), and the court denied (ex. 18). Petitioner did not appeal. On September 29, 2009, petitioner filed a "motion for appellate reversal" (ex. 15). The State opposed the motion (ex. 19), but the record does not reflect a hearing on this motion, nor an order or appeal.
On October 1, 2009, almost two months after the judgment of conviction was entered, petitioner filed a motion to separate case asking the court to sever his case from his co-defendant's (ex. 16). The State opposed, and the court denied the motion (ex.'s 22, 25). Petitioner did not appeal. On October 12, 2009, petitioner filed a petition for writ of mandamus in the Nevada Supreme Court (ex. 20). On November 3, 2009, the Nevada Supreme Court declined to exercise original jurisdiction and denied the petition (ex. 26).
On October 27, 2009, petitioner filed a "motion to relief from prejudicial joinder" (ex. 23), as well as a second motion to withdraw plea agreement (ex. 24). The State opposed both, and the court denied both (ex.'s 31, 32).
On December 23, 2009, petitioner filed his first postconviction petition for writ of habeas corpus (ex. 28). On March 17, 2010, petitioner filed his third motion to withdrawal [sic] plea (ex. 34). On September 10, 2010, the Nevada Supreme Court consolidated the appeals and affirmed the dismissal of the postconviction petition and affirmed the denial of the motion to withdraw plea (ex. 44).
On September 7, 2010, petitioner filed his second state postconviction petition for writ of habeas corpus (ex. 43). On July 15, 2011, the Nevada Supreme Court affirmed the state district court's denial of the petition as untimely filed, successive and an abuse of the writ. Remittitur issued on August 12, 2011.
Petitioner dispatched this federal petition for writ of habeas corpus on September 1, 2011 (ECF #4). On March 9, 2012, petitioner filed a motion to amend his petition (ECF #15), which the court granted (ECF #17). Pursuant to the court's order, petitioner's supplement to petition for writ of habeas corpus was filed on May 3, 2012 (ECF #18). Respondents argue that the petition should be dismissed because all grounds either fail to state a claim cognizable in federal habeas corpus, are procedurally barred or are unexhausted.
In federal habeas proceedings, notice pleading is not sufficient. Mere conclusions of violations of federal rights without specifics do not state a basis for federal habeas relief. Mayle v. Felix, 545 U.S. 644, 655 (2005). Conclusory allegations not supported by specific facts are subject to summary dismissal. Blackledge v. Allison, 431 U.S. 63, 74 (1977).
A state prisoner is entitled to federal habeas relief only if he is being held in custody in violation of the constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Unless an issue of federal constitutional or statutory law is implicated by the facts presented, the claim is not cognizable under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68 (1991). A petitioner may not transform a state-law issue into a federal one merely by asserting a violation of due process. Langford v. Day, 110 F.3d 1380, 1381 (9th Cir. 1996). Alleged errors in the interpretation or application of state law do not warrant habeas relief. Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir. 2004).
"Procedural default" refers to the situation where a petitioner in fact presented a claim to the state courts but the state courts disposed of the claim on procedural grounds, instead of on the merits. A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state law ground...
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