Johnson v. Gittere ( 2021 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT JOHNSON, Case No. 3:20-cv-00591-MMD-CLB 7 Petitioner, ORDER v. 8 WILLIAM GITTERE, et al., 9 Respondents. 10 11 12 I. SUMMARY 13 This habeas matter is before the Court on Respondents’ motion to dismiss. (ECF 14 No. 12 (“Motion”).)1 For the reasons discussed below, Respondents’ Motion is granted. 15 II. BACKGROUND 16 Johnson challenges a conviction and sentence imposed by the Eighth Judicial 17 District Court for Clark County (“state court”).2 See State of Nevada v. Johnson, Case 18 No. C-16-316403-1. On October 3, 2017, the state court entered a judgment of conviction 19 for battery with use of a deadly weapon resulting in substantial bodily harm, robbery with 20 use of a deadly weapon, grand larceny auto, and bribing or intimidating witness to 21 influence testimony. 22 The Nevada Court of Appeals affirmed the conviction. In June 2019, Johnson filed 23 a state petition for writ of habeas corpus. See Johnson v. State of Nevada, Case No. A- 24 25 1Petitioner did not file an opposition to Respondents’ Motion and the time for 26 response has long expired. 27 2The Court takes judicial notice of the online docket records of the Eighth Judicial District Court and Nevada appellate courts. The docket records may be accessed by the 28 public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and 2 conviction appeal. The Nevada Court of Appeals affirmed the denial of relief in June 2020, 3 and a remittitur issued the following month. On October 19, 2020, Johnson initiated this 4 federal habeas corpus proceeding pro se. (ECF No. 1.) The Court instructed him to 5 resolve the filing fee, and he timely complied. (ECF Nos. 4, 5.) His petition presents claims 6 under the United States Constitution, alleging ineffective assistance of both trial and 7 appellate counsel. 8 III. DISCUSSION 9 Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District 10 Courts (“Habeas Rule(s)”) requires a federal habeas petition to specify all grounds for 11 relief and “state the facts supporting each ground.” Notice pleading is not sufficient to 12 satisfy the specific pleading requirements for federal habeas petitions. See Mayle v. 13 Felix, 545 U.S. 644, 655-56 (2005) (noting that Rule 8(a) of the Federal Rules of Civil 14 Procedure requires only “fair notice” while Habeas Rule 2(c) “is more demanding,” mere 15 legal conclusions without facts are not sufficient—“it is the relationship of the facts to the 16 claim asserted that is important”). Mere conclusions of violations of federal rights without 17 specifics do not state a basis for habeas corpus relief. See Mayle, 545 U.S. at 649; Jones 18 v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995). A claim for relief is facially plausible when 19 the pleading alleges facts that allow the court to draw a reasonable inference that the 20 petitioner is entitled to relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 21 Although pro se pleadings must be liberally construed, Erickson v. Pardus, 551 U.S. 89, 22 94 (2007), conclusory allegations unsupported by specific facts are subject to summary 23 dismissal. See Blackledge v. Allison, 431 U.S. 63, 74 (1977). 24 A. Ground 1 25 In Ground 1, Johnson requests that the Court appoint him an attorney in the instant 26 matter and represents that he previously had the assistance of a fellow inmate, but 27 Johnson has been relocated and no longer has assistance. (ECF No. 7 at 3.) Johnson 28 also filed a separate motion for appointment of counsel (ECF No. 1-2) when he filed the 2 to a denial of due process and denied his motion for appointment of counsel. (ECF No. 3 6.) 4 A state prisoner is entitled to federal habeas relief only if he is being held in custody 5 in violation of the constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). 6 Unless an issue of federal constitutional or statutory law is implicated by the facts 7 presented, the claim is not cognizable under federal habeas corpus. See Estelle v. 8 McGuire, 502 U.S. 62, 68 (1991). In Ground 1, Johnson alleges that “all of [his] 9 constitutional rights” were violated in his request for appointment of an attorney. (ECF No. 10 7 at 3.) Johnson does not allege any specific violation of federal rights that states a basis 11 for habeas corpus relief. To the extent that Johnson sets forth his request for appointment 12 of counsel as a separate claim, the Court dismisses the claim as conclusory and 13 noncognizable. 14 B. Ground 1(a) 15 In Ground 1(a), Johnson alleges that counsel rendered ineffective assistance for 16 failure to investigate three eyewitnesses that were present at the scene of the incident 17 underlying his charges. (ECF No. 7 at 5.) Respondents argue that Ground 1(a) should be 18 dismissed as conclusory. (ECF No. 12 at 7.) They contend that Johnson provides no 19 specific allegations as to how he was prejudiced by counsel’s alleged failure and with 20 respect to the alleged witnesses, Johnson fails to identify any specific individuals or state 21 to what they would have testified. (Id.) 22 The Court agrees that Ground 1(a) must be dismissed as conclusory. Johnson 23 provides no specific allegations to identify how he “was in fact prejudiced by preliminary 24 and trial counsel ineffectiveness under pretrial investigation.” (ECF No. 7 at 5.) Although 25 Johnson describes the three eyewitnesses as “females,” he fails to specifically identify 26 any witnesses that counsel should have called. (Id. at 16.) He further fails to provide any 27 specific allegations as to the substance of the witnesses’ testimony beyond that “it is 28 obvious that the petitioner would not being [sic] under a conviction and/or incarcerated, 1 || as well as the person who actually assaulted the victim would have been held accountable 2 || and not the petitioner.” (/d. at 5.) Conclusory allegations not supported by specific facts 3 || are subject to summary dismissal. See Blackledge, 431 U.S. at 74. Therefore, Ground 4 || 1(a) is dismissed as conclusory. 5 C. Ground 2 6 In Ground 2, Johnson alleges that counsel rendered ineffective assistance for 7 || waiving the preliminary hearing without Johnson’s permission. (ECF No. 7 at 8-9.) 8 || Respondents argue that Ground 2 should be dismissed because it is belied by the record. 9 || (ECF No. 12 at 7.) They contend that Johnson was indicted via grand jury and Ground 2 10 || is further contradicted by Ground 4 in that Johnson alleges that his attorney failed to object 11 || on the basis that Johnson was not given notice of the grand jury proceeding or the 12 || opportunity to testify at such proceeding. (/d.) 13 The prosecution brought the state district court case against Johnson by way of an 14 || indictment from a grand jury; therefore there was no preliminary hearing to waive. (See 15 || Ex. 1 at 2; ECF No. 13-1.) See also Medina v. Williams, 2012 WL 3245525, at *9 (D. Nev. 16 || Aug. 6, 2012), aff'd, 565 F. App’x 644 (9th Cir. 2014). “[C]ontentions that in the face of 17 || the record are wholly incredible” are subject to summary dismissal. Blackledge, 431 U.S. 18 || at 74. Because Ground 2 does not state a viable claim for relief, Respondents’ motion to 19 || dismiss is granted. 20 || IV. CONCLUSION 21 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 12) is 22 || granted. Grounds 1, 1(a), and 2 are dismissed. 23 It is further ordered that Respondents must file an answer to the remaining claims 24 || of the petition for writ of habeas corpus within 60 days of the date of this order. Petitioner 25 || will have 60 days from the date of service of the answer to file a reply. 26 DATED THIS 19" Day of October 2021. 28 □□□□□□□□□□□□□□□□□□□□□□□□□□ CHIEF UNITED STATES DISTRICT JUDGE