Opinion
3:12-cv-00597-RCJ-WGC
11-21-2012
KEITH DAVID HOUSTON, Petitioner, v. NOEL WATERS, et al. Respondents.
ORDER
This habeas matter initiated by a Nevada state inmate comes before the Court for initial review.
Petitioner Keith David Houston addressed a letter to a judge of this Court asking the the judge to accept the letter as an application to waive the filing fee, to accept the letter as a petition for a writ of habeas corpus, and to appoint counsel. Petitioner contends that counsel should be appointed because of alleged impediments to petitioner's access to the courts because the prison law library uses a paging system to distribute legal materials.
The papers presented are subject to multiple substantial defects.
First, petitioner may not commence a civil action by sending a letter to a judge. Petitioner does not need personal physical access to the prison law library to send kites to obtain the required forms a the petition and pauper application as well as the required financial attachments for a properly-completed pauper application. Inmates at Lovelock Correctional Center ("Lovelock") regularly properly commence actions in this Court with the proper forms and attachments - using the paging system referenced by petitioner to obtain all required forms and materials.
Second, in line with the foregoing, petitioner must either pay the $5.00 filing fee or submit a properly-completed application to proceed in forma pauperis on the required form in order to properly commence an action in federal court.
Third, also in this same vein, petitioner must use the Court's habeas petition form as required by Local Rule LSR 3-1.
Fourth, petitioner failed to name an appropriate respondent. Petitioner must name his immediate physical custodian, i.e., the warden of the institution in which he currently is incarcerated, as a respondent. See generally Rumsfeld v. Padilla, 542 U.S. 426 (2004)(immediate custodian rule). The only officers referenced in petitioner's letter are prosecutors, and these officers are not appropriate respondents for the type of habeas action presented.
Due to these multiple substantial defects, the petition in this improperly-commenced action will be dismissed without prejudice. As discussed further below, it does not appear that a dismissal without prejudice would materially affect the analysis of either the timeliness of a promptly-filed new petition or other issues therein.
The records of this Court and the state courts reflect that petitioner was convicted nearly three decades ago, on February 14, 1983, pursuant to a guilty plea, of murder in the first degree and sexual assault causing substantial bodily harm. Petitioner did not have any state proceedings pending challenging his conviction on April 24, 1996, when the one-year federal limitation period began running following the adoption of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). After 219 days had elapsed, on or about November 20, 1996, petitioner filed a motion to withdraw his guilty plea in the state district court. The state district court and state supreme court denied relief. The remittitur in the latter court's No. 30059 would have issued under that court's rules on or about Monday, April 26, 1999, following upon the March 30, 1999, order dismissing the appeal. Absent any other basis for tolling or delayed accrual, the federal limitation period would have expired after another 146 days had elapsed, on or about Monday September 20, 1999.
'while petitioner refers to his being charged with a capital offense, Houston was sentenced to two consecutive life sentences without the possibility of parole. The Clerk accordingly properly categorized the matter on the docket of this Court as a noncapital federal habeas proceeding.
See, e.g., Keith David Houston v. State, No. 40652 (Nev., Nov. 14, 2003)(earty writ history).
Accordingly, a dismissal without prejudice would not materially affect the analysis of either the timeliness of a promptly-filed new petition or other issues therein. Absent other tolling or delayed accrual, the federal limitation period expired over 13 years ago.
The Court expresses no opinion as to whether - even if petitioner otherwise could establish the timeliness of a petition at this point - a federal petition challenging petitioner's conviction would constitute a successive petition.
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Finally, the Court rejects petitioner's premise that he is being denied access to the courts merely because a paging system is used at Lovelock to distribute legal materials. This Court has considered, and rejected, the notion that use of a paging system, in and of itself, categorically denies an inmate constitutional access to the courts. See e.g., Felix v. McDaniel, 2012 WL 666742, slip op. at *6-9 (D.Nev., Feb. 29, 2012). Review of state and federal records reflects that petitioner has filed, and continues to file, multiple proceedings in the state and federal courts. Indeed, in the present letter, Houston presents 9 pages of legal argument, complete with citation in the final three pages to multiple case authorities. The notion that the Lovelock paging system is preventing petitioner from accessing this or other courts is wholly belied by the record in this and multiple other proceedings filed by petitioner while incarcerated in an institution using a paging system for law library access.
Petitioner can, and must, properly commence an action by submitting a properly-completed pauper application and petition on the required form in a new action. The Court will not appoint counsel or grant other relief on the rejected premise that petitioner is unable to properly commence an action due to the paging system. Petitioner must pursue any relief sought in a new and properly-commenced action. The present action is closed.
IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice and all requests for relief asserted herein are denied without prejudice.
IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason would not find the dismissal of this improperly-commenced action to be either debatable or incorrect, given the absence of any substantial prejudice to petitioner from the dismissal without prejudice.
The Clerk of Court shall SEND petitioner along with this order two copies each of the inmate pauper and noncapital habeas petition forms, one copy of the instructions for each form, and one copy of the papers submitted in this action.
The Clerk further shall enter final judgment dismissing this action without prejudice.
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ROBERT C. JONES
Chief United States District Judge