Opinion
3:23-cv-00425-MMD-CLB
10-31-2023
JERRY D. POUGH, Petitioner, v. WILLIAM GITTERE, et al., Respondents.
ORDER
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
On August 28, 2023, pro se Petitioner Jerry D. Pough filed a complaint for declaratory and injunctive relief, motion for leave to proceed in forma pauperis (“IFP”), motion to extend prison copy work limit, motion for court records and transcripts, motion to transport, and motion in support of an expedited preliminary injunction. (ECF Nos. 1-1, 1-3, 1-4, 1-5, 1-6.) On August 31, 2023, the Court instructed Pough to (1) either pay the $5 filing fee or submit his missing IFP application documents and (2) file an amended petition on the Court's form. (ECF No. 3.) On October 4, 2023, Pough filed a motion for a free electronic copy of all documents, motion for expedited pretrial conference, and an amended IFP application. (ECF Nos. 4, 5, 6.) The Court grants Pough's amended IFP application. However, Pough has not filed an amended petition as instructed, and his deadline for doing so expired on October 20, 2023. (ECF No. 3.) Because Pough has attempted to comply with the Court's August 31, 2023 order by filing an amended IFP application, the Court grants Pough one more chance to file an amended petition.
It is therefore ordered that Pough's original IFP application (ECF No. 1) is denied as complete.
It is further ordered that Pough's amended IFP application (ECF No. 6) is granted.
It is further ordered that Pough must file an amended petition on the Court's form on or before November 30, 2023, by labeling it “Amended Petition” and placing the case number, 3:23-cv-00425-MMD-CLB, in the designated space.
It is further ordered that Pough's failure to timely comply with this Order will result in the dismissal of this action without prejudice and without further advance notice.
The Clerk of Court is directed to again send Petitioner one blank copy of the form petition for a writ of habeas corpus under 28 U.S.C. § 2254 along with instructions.
INFORMATION AND INSTRUCTIONS FOR FILING A PETITION FORWRIT 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
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). 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 - Clerk, U.S. District Court
District of Nevada - District of Nevada
400 South Virginia Street OR 333 Las Vegas Boulevard South
Room 301 - Room 1334
Reno NV 89501 - 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.
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.
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.
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.