Opinion
3:12-cv-00572-LRH-VPC
04-13-2013
KEVIN RAY HOLMES, Petitioner, v. JAMES BACA, et al., Respondents.
ORDER
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. On November 20, 2012, the court issued an order directing petitioner to show cause and file such proof as he may have to demonstrate either that the petition is timely or that he is entitled to equitable tolling of the one-year limitations period (ECF #3). Before the court is petitioner's response to that order (ECF #4).
First, petitioner argues that he has not filed a new federal habeas petition but a motion for relief from judgment pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure (see ECF #4). More than thirteen years after his judgment of conviction was entered, petitioner apparently challenges the validity of the State of Nevada's charging documents (id. at 3). Moreover, he argues that no coroner's inquest to "establish probable cause in cases of death" [of the victim] was ever held (id. at 4-5). "This petition was a means of bringing this claim from the state court, to this court, for review and F.R.C.P. Rule 60(b) allows for this" (id. at 6). "Petitioner is currently being held on a judgment of conviction that is not correct" (id. at 12). This court disagrees with petitioner that this action is something other than a habeas petition. Petitioner clearly seeks to challenge-again-the legality of his custody. Thus, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). The court has properly construed this filing as a petition for a writ of habeas corpus.
Next, petitioner attached several exhibits to his response that demonstrate that this is not his first federal habeas petition challenging this judgment of conviction. He included a copy of the order denying his previous federal habeas petition as well as the Ninth Circuit Court of Appeals Memorandum affirming the denial (Holmes v. Helling, 3:04-00098-PMP-VPC, portions of which petitioner includes at ECF #4-1 at 39-55). However, 28 U.S.C. § 2244(3)(A) provides: "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." The instant petition is a successive petition, which requires petitioner to seek and obtain leave of the Ninth Circuit Court of Appeals to pursue. See 28 U.S.C. § 2244(b)(3) et seq. The petitioner has not presented this court with proof that he has obtained leave to file a successive petition from the Court of Appeals. Accordingly, petitioner has thirty (30) days from the date of entry of this order to show cause and file such proof as he has to demonstrate that he has obtained the leave of the Ninth Circuit to pursue this petition.
Finally, petitioner has attached as an exhibit to his response to the first show-cause order that purportedly is a copy of the Ninth Circuit Court of Appeals' decision in his appeal of the denial of his first federal petition, in Holmes v. Helling, et al., 3:04-cv-00098-PMP-VPC. Specifically, petitioner purportedly attaches the Memorandum Opinion of the Ninth Circuit Court of Appeals, filed October 31, 2007, in Appeal No. 07-15184 (ECF #4-1 at 50-55, attached as Exhibit A to this order). However, it appears that the document submitted by petitioner has been altered. The Ninth Circuit affirmed the district court, and thus its order concluded with "AFFIRMED." (3:04-cv-00098-PMP-VPC, ECF #46, attached as Exhibit B to this order, at 5). But the document submitted by petitioner concludes with "AFFIRMED in part. REVERSED in part." (Ex. A at 55). In addition, a sentence appears to have been added to the end of the sixth paragraph of the order: "We thus reverse the district court to the extent that it held that Holmes had exhausted his "bad acts" claim on direct appeal." (Ex. A at 54). Needless to say, this sentence does not appear in the Ninth Circuit Memorandum (see Ex. B at 4). Such alteration of an official order of the Ninth Circuit Court of Appeals clearly runs afoul of a party's obligations under Rule 11 of the Federal Rules of Civil Procedure and will certainly not be tolerated by this court. See FRCP 11(b). Accordingly, within thirty (30) days petitioner shall explain this apparent alteration to the court's satisfaction, and sanctions, up to and including the dismissal of this action, may result.
IT IS THEREFORE ORDERED that petitioner shall have thirty (30) days from the entry of this order to show cause and file such proof he may have to demonstrate that he has obtained the leave of the Ninth Circuit Court of Appeals to pursue this petition.
IT IS FURTHER ORDERED that if petitioner is unable to demonstrate that he has obtained such leave, the court will enter an order dismissing the petition.
IT IS FURTHER ORDERED that within thirty (30) days from the date of entry of this order petitioner shall explain the apparently altered document that he submitted. (Ex. A).
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE