Cranford v. Nevada Department of Corrections , 398 F. App'x 540 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11679 OCT 5, 2010
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 4:10-cv-00010-RH-WCS
DUKE F. CRANFORD,
lllllllllllllllllll ll Plaintiff-Appellant,
versus
NEVADA DEPARTMENT OF CORRECTIONS,
in its Official Capacity,
WALTER A. MCNEIL,
in Official and Individual Capacity,
HOWARD SKOLNIK,
in Official and Individual Capacity,
FLORIDA DEPARTMENT OF CORRECTIONS,
in its Official Capacity,
llllllllllllllllllll l Defendants-Appellees,
H. CANNON,
Sergeant in Official and Individual Capacity, et al.,
llllllllllllllllllll Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 5, 2010)
Before EDMONDSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Duke F. Cranford, a state prisoner who was convicted of first-degree murder
in Nevada, but is imprisoned in Florida pursuant to an interstate agreement,
appeals from the district court’s sua sponte dismissal of his civil rights complaint
for failure to state a claim on which relief may be granted, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). On appeal, Cranford argues that the court erred in dismissing
his complaint because the defendants deprived him of the ability to conduct legal
research using Nevada state legal materials, in violation of his constitutional right
to have access to the courts. Cranford further argues that this constitutional
violation caused him actual injury, as his inability to conduct legal research
impeded his ability to challenge his 1977 state murder conviction, as well as
several additional state convictions that he sustained in 1983. As further evidence
of actual injury, Cranford contends that his lack of access to Nev.R.App.P. 3(a)(2)
resulted in jurisdictional defects in his appeal to the Nevada Supreme Court from
2
the denial of post-conviction relief by the Eighth Judicial District Court for Clark
County, Nevada (“county court”). Finally, Cranford argues that, in recommending
that the court dismiss his complaint, the magistrate judge resolved factual disputes
in favor of the defendants, and raised arguments on the defendants’ behalf, rather
than requiring them to respond to the complaint. Thus, Cranford contends, the
magistrate violated the principle of judicial neutrality, as well as his right to equal
protection.
For the reasons set forth below, we affirm.
I.
In January 2010, Cranford, proceeding pro se, filed a complaint against
various defendants, and subsequently filed a motion for leave to proceed in forma
pauperis (“IFP”). The magistrate judge granted Cranford’s motion to proceed IFP.
In February 2010, Cranford filed an amended complaint, naming the
following defendants: (1) the Florida Department of Corrections (“FDC”); (2) the
Nevada Department of Corrections (“NDC”); (3) Walter A. McNeil, Secretary of
the FDC, in his official and individual capacity; and (4) Howard Skolnik, Director
of the NDC, in his official and individual capacity. Cranford specified that he
brought his claims against these defendants pursuant to 42 U.S.C. § 1983.
3
In his complaint, Cranford explained that, on August 1, 1994, the NDC,
acting pursuant to an interstate agreement, transferred him into the custody of the
FDC. Cranford further explained that, since he had been under the FDC’s
custody, he had filed “numerous petitions, motions, and applications” concerning
his conviction in Nevada state court, and, on each occasion, his attempt was
unsuccessful because he lacked access to Nevada state research materials, such as
case reporters, statutes, and court rules. In his most recent attempts to challenge
his conviction, he had filed a “Motion to Vacate and Set Aside” his conviction,
and a “Motion to Correct Fraud on the Court,” in the county court. Cranford’s
motion to vacate had been denied by the county court based on state rules and
cases to which Cranford lacked access. In his complaint, Cranford further asserted
that he had requested that the FDC provide him with the materials necessary to
research Nevada case law, statutes, and rules so that he could file a reply to the
state’s opposition to his motion to set aside his conviction. The FDC law
librarian, however, had informed him that the FDC did not possess these materials.
Cranford had appealed the county court’s denial of his motions to the
Nevada Supreme Court, and, on September 15, 2009, the Supreme Court had
issued a “Notice of Deficiency” as to his appeal. Cranford subsequently filed
another notice of appeal, and on December 1, 2009, the Supreme Court issued
4
another notice of deficiency. In both of these notices, the Supreme Court had
relied on Nev.R.App.P. 3(a)(2), a rule to which Cranford lacked access.
Based on the facts described above, Cranford asserted that the defendants
had denied him access to legal materials that could affect his attempts to attack his
conviction, in violation of his Fourteenth Amendment right to have meaningful
access to the courts. Cranford specified that the FDC had failed to provide him
with access to Nevada court reporters, the Pacific Reporter, Pacific Digests, and
the rules for the county court and the Nevada Rules of Appellate Procedure.
Cranford asserted that the NDC and its Director, Skolnik, were liable for this
violation of his constitutional rights because he was imprisoned pursuant to their
authority. Cranford further claimed that the FDC and its Secretary, McNeil, were
also liable for the constitutional violation because they had custodial authority
over him.
Cranford attached exhibits to his complaint. These exhibits included
Cranford’s motion to vacate and set aside his conviction, which he filed in June
2009 in the county court. In this motion, Cranford explained that, in 1977, he was
tried by a jury for first-degree murder in the county court. He alleged that, during
a pre-trial suppression hearing, the trial court erred by granting the state’s motion
to introduce into evidence a videotape, in which Cranford’s codefendant, Montena
5
Smith, made inculpatory statements to an undercover detective. Cranford
explained that, because his trial was severed from Smith’s trial, he objected to the
admission of the videotape on the basis that it constituted hearsay, and that he was
unable to cross-examine Smith regarding his inculpatory statements. The state,
however, persuaded the court to admit the videotape by arguing that Smith’s
recorded statements were made in furtherance of a conspiracy, and thus fell within
the hearsay exception codified at Nev. Rev. Stat. § 51.035(3)(e). Cranford alleged
that, in arguing that the court should admit this videotape under this exception to
the hearsay rule, the state misrepresented to the court that it would present
evidence that Cranford and Smith were involved in the same conspiracy at the
time that the videotape was made. Cranford stated that, at the conclusion of the
evidence in his trial, the trial court informed the state that it had failed to present
evidence of a conspiracy between Cranford and Smith, and that it thus would not
be permitted to argue that there was a conspiracy between them during closing
statements. The trial court, however, refused to grant Cranford’s motion for a
mistrial based on the admission of the videotape.
In his motion to vacate, Cranford had argued that, by misrepresenting to the
court that the state had evidence of a conspiracy between Cranford and Smith, the
state prosecutor perpetrated “fraud on the court,” and this fraud seriously
6
impugned the integrity of Cranford’s trial. Cranford asserted that the county court
should set aside his conviction, as it was the product of fraud on the court, and the
introduction of the videotape amounted to a “manifest injustice.” Moreover,
Cranford contended that, because his conviction resulted from fraud, his motion to
vacate should not be dismissed as time-barred, or as a successive habeas petition.
Cranford’s exhibits also included the state’s response to his motion to
vacate. In its response, the state explained that a jury had convicted Cranford of
first-degree murder in 1977, and that Cranford had been sentenced to a term of life
imprisonment. The state recounted the procedural history of Cranford’s case,
noting that Cranford’s conviction had been affirmed by the Nevada Supreme Court
on direct appeal, and that Cranford’s four subsequent habeas petitions had been
denied. The state also noted that, in April 2009, Cranford had filed a “Motion to
Correct Fraud on the Court” in the county court, and the court had denied this
motion. The state characterized Cranford’s motion to vacate as a motion for the
county court to reconsider its denial of his “Motion to Correct Fraud on the
Court.” Relying on Nevada court rules, the state argued that the court should deny
Cranford’s motion to vacate because it constituted an impermissible attempt to
relitigate matters that already had been decided.
7
Cranford’s exhibits also included pleadings filed by the state in opposition
to other post-conviction motions that Cranford had filed in county court. These
pleadings demonstrated that the state typically relied on Nevada Supreme Court
cases and procedural rules in opposing Cranford’s motions.
Cranford’s exhibits also included a FDC inmate request form, completed on
October 19, 2009, in which Cranford requested copies of two Nevada Supreme
Court cases and Nev.R.App.P. 3(a)(2). On this same form, a FDC official
responded that the FDC libraries did not possess these materials. The official
instructed Cranford that, in order to obtain these materials, he was required to
follow the procedures set forth in “Ch. 33-501.301(6)(c).”
Finally, Cranford’s exhibits included two county court documents labeled
“Notice of Deficiency,” which were dated September 15, 2009, and December 1,
2009, respectively. Both of these notices stated, “Your appeal has been sent to the
[Nevada] Supreme Court.” Both of these notices also stated that the “Notice of
Entry of Order,” had not been transmitted and, in explanation of this deficiency,
cited to Nev.R.App.P. 3(a)(2). The notices also included the following text from
Rule 3(a)(2):
The district court clerk must file appellant’s notice of appeal despite
perceived deficiencies in the notice, including the failure to pay the
district court or Supreme Court filing fee. The district court clerk shall
8
apprise appellant of the deficiencies in writing, and shall transmit the
notice of appeal to the Supreme Court in accordance with subdivision
(e) of this Rule with a notation to the clerk of the Supreme Court setting
forth the deficiencies. Despite any deficiencies in the notice of appeal,
the clerk of the Supreme Court shall docket the appeal in accordance
with Rule 12.
The notices directed Cranford “to refer to Rule 3 for an explanation of any
possible deficiencies.”
Before any of the defendants answered the complaint, the magistrate judge
sua sponte recommended that the court dismiss Cranford’s complaint for failure to
state a claim on which relief may be granted, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). In its report and recommendation, the magistrate determined
that Cranford’s access-to-the-courts claim was based on the First Amendment to
the U.S. Constitution. The magistrate found that Cranford’s exhibits showed that,
when he requested certain materials from the FDC’s law library, the FDC
responded that he would need to procure these materials by following the
procedures set forth in Fla. Admin. Code Ann. r. 33-501.301(6)(c). The
magistrate reproduced the text of Rule 33-501.301(6)(c), which provided that an
inmate who wished to secure legal materials that were not in the FDC’s libraries
must submit a request for the materials to the library services administrator for
approval. In his request, the inmate was required to “include the full and complete
9
citation of the material needed.” Without discussion, the magistrate concluded
that this rule “plainly show[ed] that [Cranford] has reasonable access to Nevada
legal materials.” The magistrate found that Cranford did not allege that he had
made an interlibrary loan request, or that such a request was denied.
The magistrate additionally found that Cranford had failed to show that he
sought to pursue a nonfrivolous underlying legal claim. The magistrate
determined that the underlying claim that Cranford sought to pursue before the
Nevada state courts was set forth in his motion to set aside his conviction. The
magistrate noted that the Nevada Supreme Court had affirmed Cranford’s
conviction on direct appeal in Cranford v. State, 596 P.2d 489 (Nev. 1979), and
explained that this decision showed that, on direct appeal, Cranford had raised the
same arguments set forth in his 2009 motion to vacate. The magistrate further
found that any claim that Cranford presently wished to pursue before the Nevada
state courts was “undoubtedly barred” under Nevada law. Relying on Nev. Rev.
Stat. § 34.726, the magistrate explained that, absent a showing of good cause for a
delay, a Nevada state prisoner was required to bring a petition challenging the
validity of his judgment or sentence within one year of the entry of the judgment,
or within one year after the Nevada Supreme Court issued a “remittitur.”
10
In addition, the magistrate determined that, to the extent that Cranford
sought to raise the same claims in his motion to vacate that he previously had
raised in state habeas petitions, these claims were “successive and [would] not be
heard.” To the extent these claims were new, the magistrate reasoned that they
would be procedurally barred. For the above reasons, the magistrate found that
Cranford had failed to show that he had been impeded in pursuing a nonfrivolous
underlying claim. Accordingly, the magistrate concluded that Cranford had failed
to state a court-access claim upon which relief could be granted, and
recommended that the court dismiss Cranford’s complaint under
§ 1915(e)(2)(B)(ii).
Cranford filed objections to the magistrate’s report and recommendation. In
his objections, Cranford, relying on the U.S. Supreme Court’s decision in Bounds
v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), limited by Lewis v.
Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), argued that a
prisoner’s right of access to the courts includes the right to conduct legal research.
Cranford asserted that the legal materials in the possession of the FDC were
insufficient to enable him to attack his conviction, as they pertained only to
Florida law. Cranford further asserted that, after he received the magistrate’s
report and recommendation, he had verified with a FDC librarian that the FDC did
11
not have a system whereby a prisoner could conduct research using Nevada legal
materials. Cranford explained that, in order for him to use the interlibrary loan
program, he would need to request specific case citations or statutes, and that he
could not obtain these citations or statutes without first conducting research.
Cranford also argued that his claim of fraud on the trial court was meritorious, and
that a claim of fraud was not subject to a one-year time limit. Cranford contended
that his failure to prevail on his fraud claim in state court was due to his inability
to conduct research using Nevada legal materials.
Cranford attached an exhibit to his objections to the report and
recommendation. This exhibit was a second FDC inmate request form, completed
on March 10, 2010, in which Cranford requested “legal material to research [his]
Nevada conviction,” and specified that he did not know the specific case citations
or statutes that he would need. Cranford inquired as to whether the FDC had a
system by which he could research Nevada legal materials. On this same form, a
FDC library official responded that “Florida does not have any or cannot get you
any material you need unless you know exactly what cases you need.”
The court entered an order adopting the magistrate’s report and
recommendation, and dismissing Cranford’s complaint pursuant to
§ 1915(e)(2)(B).
12
II.
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), which is part of the Prison
Litigation Reform Act (“PLRA”), an IFP complaint shall be dismissed at any time,
if the court determines that it fails to state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(ii). We review a district court’s sua sponte dismissal of
a complaint for failure to state a claim, pursuant to § 1915(e)(2)(B)(ii), de novo,
using the same standards that govern dismissals under Fed.R.Civ.P. 12(b)(6).
Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir. 1997). When reviewing a
court’s dismissal of a complaint pursuant to Rule 12(b)(6), we accept the factual
allegations in the complaint as true and construe them in the light most favorable
to the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). In addition,
we liberally construe a pro se litigant’s pleadings. Powell v. Lennon, 914 F.2d
1459, 1463 (11th Cir. 1990).
“A motion to dismiss is granted only when [it appears] beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.” Castro v. Sec’y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir.
2006) (quotation omitted). In addition, “[w]hile a complaint . . . does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions.” Bell Atl. Corp. v.
13
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)
(quotation and alteration omitted). Pursuant to Fed.R.Civ.P. 8(a)(2), the plaintiff
must make a plain statement demonstrating his right to relief. Id. at 557, 127 S.Ct.
at 1966. In order to satisfy Rule 8’s pleading requirements, the plaintiff must
allege facts sufficient to “show” a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. ___, ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).
“The analysis of a 12(b)(6) motion is limited primarily to the face of the
complaint and attachments thereto.” Brooks v. Blue Cross and Blue Shield of Fla.,
Inc., 116 F.3d 1364, 1368-69 (11th Cir. 1997). Nevertheless, a court may take
judicial notice “of the state and federal court proceedings in which [the prisoner]
was convicted or attacked his conviction.” See Cunningham v. Dist. Attorney’s
Office for Escambia Cnty., 592 F.3d 1237, 1255 (11th Cir. 2010).
Access to the courts is a constitutional right that is grounded in several
constitutional amendments, including the First Amendment and the Fourteenth
Amendment. Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003); see also
Barbour v. Haley, 471 F.3d 1222, 1224 n.2 (11th Cir. 2006) (noting that the
prisoners’ claim that they had been denied meaningful access to the courts
implicated both the First and Fourteenth Amendments). In Bounds, the U.S.
Supreme Court held that the “right of access to the courts requires prison
14
authorities to assist inmates in the preparation and filing of meaningful legal
papers by providing prisoners with adequate law libraries or adequate assistance
from persons trained in the law.” 430 U.S. at 828, 97 S.Ct. at 1498. In explaining
the importance of providing prisoners with law libraries or other forms of legal
assistance, the Supreme Court stated:
If a lawyer must perform [] preliminary [legal] research, it is no less vital
for a pro se prisoner . . . . Moreover, if the State files a response to a pro
se pleading, it will undoubtedly contain seemingly authoritative
citations. Without a library, an inmate will be unable to rebut the State’s
argument. It is not enough to answer that the court will evaluate the facts
pleaded in light of the relevant law.
Id. at 825-26, 97 S.Ct. at 1497.
In Lewis, the Supreme Court clarified that, although prison law libraries and
legal assistance programs are “one constitutionally acceptable method to assure
meaningful access to courts,” they are not ends in themselves. Lewis, 518 U.S. at
351, 116 S.Ct. at 2180 (quotation omitted). “The inquiry is [] whether law
libraries or other forms of legal assistance are needed to give prisoners a
reasonably adequate opportunity to present claimed violations of fundamental
constitutional rights to the courts.” Bounds, 430 U.S. at 825, 97 S.Ct. at 1496.
“[I]n order to assert a claim arising from the denial of meaningful access to
the courts, an inmate must [] establish an actual injury.” Barbour, 471 F.3d at
15
1225. “Actual injury may be established by demonstrating that an inmate’s efforts
to pursue a nonfrivolous claim were frustrated or impeded by a deficiency in the
prison library or in a legal assistance program.” Id. The actual-injury element
requires that “the plaintiff must identify within his complaint, a nonfrivolous,
arguable underlying claim.” Id. at 1226 (citation omitted). In other words, the
plaintiff must show that he has more than a mere “hope” of obtaining relief on the
underlying claim. See Cunningham, 592 F.3d at 1271. In addition, the prisoner
must show that that his underlying nonfrivolous claim was raised, or would have
been raised, in connection with a direct appeal, a collateral attack on his
conviction, or a civil rights action. See Lewis, 518 U.S. at 355, 116 S.Ct. at 2182.
Under Nevada state law, any person under a sentence of imprisonment who
believes that his conviction was obtained in violation of state or federal law may
file a petition for a writ of habeas corpus. Nev. Rev. Stat. § 34.724(1) (2009).
Generally, a prisoner must file a habeas petition “within [one] year after entry of
the judgment of conviction or, if an appeal has been taken from the judgment,
within [one] year after the Supreme Court issues its remittitur.” Nev. Rev. Stat.
§ 34.726(1) (2009). A prisoner may file a petition after this time period expires
only if he demonstrates good cause for the delay, that the delay was not his fault,
and that the dismissal of the petition as untimely would result in undue prejudice.
16
Id. The habeas-petition process “[c]omprehends and takes the place of all other
common-law, statutory or other remedies which have been available for
challenging the validity of the conviction or sentence, and must be used
exclusively in place of them.” Nev. Rev. Stat. § 34.724(2)(b). Where a Nevada
state prisoner files a motion challenging the validity of his conviction, the motion
is properly construed as a habeas petition, and the procedural time-bar set forth in
§ 34.726 applies. Hathaway v. State, 71 P.3d 503, 507 n.13 (Nev. 2003).
In addition, Nevada law directs that a court shall dismiss a successive
habeas petition if: (1) the defendant’s conviction resulted from a trial, and he
could have filed his present claims before the trial court, on direct appeal, or in a
previous habeas petition, but failed to do so; or (2) the defendant fails to allege
new or different grounds for relief, and the claims he presently asserts have
already been decided on the merits in another proceeding. Bejarano v. State, 146
P.3d 265, 269-70 (Nev. 2006) (relying on Nev. Rev. Stat. § 34.810(1)(b) and
(2) (2009)). A petitioner may overcome these procedurals bars on successive
habeas petitions only by showing good cause and prejudice, or that applying a
procedural bar would result in a fundamental miscarriage of justice. Id. at 270;
Nev. Rev. Stat. § 34.810. A petitioner may demonstrate a fundamental
17
miscarriage of justice by “mak[ing] a colorable showing he is actually innocent of
the crime.” Pellegrini v. State, 34 P.3d 519, 537 (Nev. 2001).
Furthermore, the Nevada Supreme Court has held that the law-of-the-case
doctrine bars a habeas petitioner from raising a claim in a habeas petition that
already has been considered on direct appeal. State v. Haberstroh, 69 P.3d 676,
686 (Nev. 2003). In so holding, the court explained that, “[t]he law of a first
appeal is the law of the case in all later appeals in which the facts are substantially
the same, and that law cannot be avoided by more detailed and precisely focused
argument made after reflecting upon previous proceedings.” Id.As an initial matter, we do not consider Cranford’s argument that his
inability to access Nevada legal materials prevented him from attacking his 1983
convictions, as Cranford failed to raise this claim, or mention his 1983
convictions, in his complaint. See Miller v. King, 449 F.3d 1149, 1150 n.1 (11th
Cir. 2006) (holding that, because the pro se plaintiff failed to raise a claim under
the Rehabilitation Act, we would not consider this claim for the first time on
appeal).
The magistrate did not cite to any legal support, or provide an explanation,
for the conclusion that the FDC’s interlibrary loan system, as described in
Cranford’s complaint and exhibits and set forth in Fla. Admin. Code Ann. r.
1833-501.301(6)(c), clearly demonstrated that Cranford had reasonable access to
Nevada legal materials. Specifically, the magistrate failed to explain how, in light
of Bounds’s discussion of the importance of a pro se prisoner’s ability to conduct
legal research, the interlibrary loan system described by Cranford met
constitutional demands. See Bounds, 430 U.S. at 825-26, 97 S.Ct. at 1497.
Although Fla. Admin. Code Ann. r. 33-501.301(6)(c) may have shown that
Cranford could obtain a Nevada case or statute if he was aware of its citation, this
rule did not show that Cranford had the ability to conduct legal research using
Nevada legal materials.1
Nevertheless, the district court did not err in sua sponte dismissing
Cranford’s complaint for failure to state a claim on which relief may be granted,
pursuant to § 1915(e)(2)(B)(ii), because Cranford failed to identify a nonfrivolous
underlying claim. See Barbour, 471 F.3d at 1225-26. While Cranford generally
alleged that the FDC’s library system had impeded every effort he had made to
1
In this regard, we note that at least two circuit appellate courts have indicated that the
type of interlibrary loan system described by Cranford may not meet constitutional demands. See
Trujillo v. Williams, 465 F.3d 1210, 1214, 1218, 1226 (10th Cir. 2006) (holding that the district
court erred in dismissing the prisoner’s access-to-the-courts claim, as his allegation that he could
not obtain state research materials without first providing an exact legal citation for the material
he desired “may state a viable claim of denial of access to the courts”); Corgain v. Miller, 708
F.2d 1241, 1244, 1250 (7th Cir. 1983) (noting that a prison’s library system had not satisfied
constitutional demands because “the inmate could obtain state law materials only by providing
precise citations, and could obtain precise citations only if he could refer to state law materials”).
19
attack his murder conviction since 1994, this claim lacked sufficient specificity to
survive dismissal. See Twombly 550 U.S. at 555, 127 S.Ct. at 1964-65.
Cranford’s assertions to this effect were conclusory, as he failed to describe any
nonfrivolous claims that he presented in these motions and petitions, and failed to
explain how his inability to access Nevada legal materials impeded his ability to
litigate any claims he may have raised. Accordingly, to the extent that Cranford
sought relief based on the theory that he lacked access to the court in connection
with every post-conviction motion and petition that he had filed while he was in
the custody of the FDC, this claim was properly dismissed. See Christopher, 536
U.S. at 415, 122 S.Ct. at 2186-87.
As the magistrate noted, the only allegedly nonfrivolous claim that Cranford
specifically described in his complaint and attached exhibits was his 2009 motion
to set aside or vacate his conviction, which he had filed in county court. The claim
set forth in Cranford’s motion to vacate and set aside, however, was frivolous, as it
lacked arguable merit under Nevada state law for several reasons.
Under Nevada law, Cranford’s motion to vacate constituted a habeas
petition, as it was a post-conviction collateral attack that asserted that his
20
conviction was invalid.2 Nev. Rev. Stat. § 34.724(2)(b); Hathaway, 71 P.3d at 507
n.13. As a result, it was subject to Nevada statutes governing habeas petitions.
See Hathaway, 71 P.3d at 507 n.13. Under these statutes, Cranford’s 2009
petition appears to be untimely, as it was filed approximately 30 years after the
Nevada Supreme Court affirmed his conviction in 1979, and he did not allege
good cause for his delay. Nev. Rev. Stat. § 34.726(1); Cranford, 596 P.2d at 489.
Moreover, in his direct appeal to the Nevada Supreme Court, Cranford
asserted essentially the same claim that he set forth in his motion to vacate—that
the trial court erred by permitting the state to introduce the videotape of Smith’s
statements into evidence pursuant to the co-conspirator exception to the hearsay
rule. See Cranford, 596 P.2d at 490. The Nevada Supreme Court rejected this
claim on the merits, holding that there was a sufficient basis for the admission of
this evidence. Id. As a result, Cranford’s attempt to relitigate this issue in a
post-conviction motion was barred by the law-of-the-case doctrine, and the fact
2
While Nevada law excepts limited categories of motions from its general rule that a
post-conviction collateral attack qualifies as a habeas proceeding, Cranford’s motion to vacate
did not fall within any of these exceptions. See McConnell v. State, 212 P.3d 307, 310 n.2 (Nev.
2009) (noting that the only remedies not supplanted by habeas corpus proceedings are direct
review, a motion to correct an illegal sentence, a motion to modify a sentence, a motion to
withdraw a guilty plea, and a motion for a new trial based on newly discovered evidence). Thus,
while Cranford appears to argue, in his brief on appeal, that the magistrate erred by
characterizing his motion to vacate as a habeas petition, Cranford’s arguments in this regard lack
merit.
21
that Cranford re-characterized this claim as “fraud on the court” in his motion to
vacate would not free him from the operation of the law-of-the-case doctrine.
Haberstroh, 69 P.3d at 686.
Finally, Cranford made clear in his complaint, and in his attachments to the
complaint, that he had filed numerous post-conviction motions and petitions
challenging his 1977 conviction, and, as result, it appears that his motion to vacate
constituted a successive habeas petition. See Nev. Rev. Stat. § 34.810(1)-(2).
Thus, to the extent that Cranford’s fraud-on-the-court claim could be considered to
be a new claim, or a reassertion of a claim that was previously raised, it would be
procedurally barred absent a showing of cause and prejudice, or a fundamental
miscarriage of justice. See Bejarano 146 P.3d at 269-70; Nev. Rev. Stat.
§ 34.810(1)(b) and (2). In his motion to vacate, Cranford did not make any
assertion related to cause and prejudice. Moreover, while Cranford asserted that
the introduction of the videotape into evidence influenced the jury and constituted
"manifest injustice," he did not make a “colorable showing” that he was actually
innocent, nor did he allege that he could show that he was actually innocent. See
Pellegrini, 34 P.3d at 537. Because Cranford’s motion to vacate did not
adequately allege cause and prejudice or a fundamental miscarriage of justice, the
22
fraud claim set forth in this motion was procedurally barred. See Bejarano, 146
P.3d at 269-70; Nev. Rev. Stat. § 34.810(1)(b) and (2).
For all of the above reasons, the underlying claim that Cranford sought to
litigate lacked arguable merit under Nevada law, and he thus failed to allege
adequately that FDC’s constitutionally inadequate library system actually injured
him in connection with his motion to vacate. See Barbour, 471 F.3d at 1225-26.
Cranford also argues that he suffered an actual injury in connection with the
deficiency notices he received in September and December 2009, because he
lacked access to the rule cited in these notices—Nev.R.App.P. 3(a)(2). This
argument, however, lacks merit for several reasons. Because these deficiency
notices provided the exact citation to the relevant rule, Cranford’s exhibits
demonstrated that he could have requested the full text of this rule through the
FDC’s interlibrary loan system, pursuant to the procedures set forth in
administrative rule 33-501.301(6)(C). Admin. Code Ann. r. 33-501.301(6)(c).
Significantly, Cranford’s exhibit E showed that, when he requested a copy of
Nev.R.App.P. 3(a)(2), the FDC library official did not deny the request outright,
but merely instructed Cranford to follow the procedures set forth in Rule
33-501.301(6)(c). Moreover, the deficiency notices made clear to Cranford that,
despite a deficiency, his appeal “has been sent to the [Nevada] Supreme Court,”
23
and would be docketed in the Nevada Supreme Court. Cranford did not explain
why he suffered prejudice despite the fact that his appeals had been forwarded to,
and would be docketed in, the Nevada Supreme Court. As a result, Cranford’s
assertions regarding the deficiency notices did not adequately allege an actual
injury sufficient to support an access-to-the-courts claim. See Barbour, 471 F.3d
at 1225-26.
Because Cranford failed to sufficiently allege that he suffered an actual
injury as a result of the FDC’s allegedly unconstitutional interlibrary loan system,
the court did not err in dismissing Cranford’s complaint under § 1915(e)(2)(B)(ii),
and we affirm as to this issue.
III.
As noted above, we do not consider arguments raised for the first time on
appeal. Miller, 449 F.3d at 1150 n.1. Even under a liberal construction of
Cranford’s objections to the magistrate’s report and recommendation, he failed to
argue that the report and recommendation violated the principle of judicial
neutrality, or that the dismissal of his complaint under § 1915(e)(2)(B) would
violate his constitutional right to equal protection. Accordingly, we do not
consider these arguments. See Miller, 449 F.3d at 1150 n.1.
AFFIRMED.
24