Jones v. Breitenbach ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 ROBERT CHARLES JONES, Case No. 3:24-cv-00282-MMD-CSD 7 Petitioner, ORDER v. 8 NETHANJAH BREITENBACH, et al., 9 Respondents. 10 11 I. SUMMARY 12 This habeas matter is before the Court for initial review of Petitioner Robert Charles 13 Jones’s pro se petition for writ of habeas corpus (ECF No. 1-1 (“Petition”)) under 28 14 U.S.C. § 2254 under the rules governing § 2254 cases.1 The Court concludes that the 15 Petition is subject to multiple substantial defects and summarily dismisses the Petition. 16 II. DISCUSSION 17 Under Habeas Rule 4, the assigned judge must examine the habeas petition and 18 order a response unless it “plainly appears” that the petitioner is not entitled to relief. See 19 Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). The rule allows courts to screen 20 and dismiss petitions that are patently frivolous, vague, conclusory, palpably incredible, 21 false, or plagued by procedural defects. See Boyd v. Thompson, 147 F.3d 1124, 1128 22 (9th Cir. 1998). 23 Petitioner challenges a 1978 state court conviction of first-degree murder. 24 Petitioner initiated this federal habeas action on July 2, 2024. (ECF No. 1-1.) It appears 25 that Petitioner is no longer in custody because he was granted parole on September 15, 26 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the 27 rules governing § 2254 cases in the United States District Courts. Petitioner filed the petition under 28 U.S.C. § 2241; however, the Court will apply the Rules in this action as authorized by Habeas Rule 1(b). 1 2023. (ECF No. 4.) 2 “‘Federal courts are courts of limited jurisdiction,’ possessing ‘only power 3 authorized by the Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013). 4 “If the Court determines at any time that it lacks subject-matter jurisdiction, the court must 5 dismiss the action.” Fed. R. Civ. P. 12(h)(3). See also Cal. Diversified Promotions, Inc. v. 6 Musick, 505 F.2d 278, 280 (9th Cir. 1974). Federal courts are “presumed to lack 7 jurisdiction in a particular case unless the contrary affirmatively appears.” A-Z Int’l v. 8 Phillips, 749 F.3d 1141, 1145 (9th Cir. 2003). 9 In order to obtain habeas relief under Section 2254, the petitioner must 10 demonstrate that he is “in custody.” 28 U.S.C. 2254(a). A federal district court may only 11 consider a habeas petition if the petitioner was in custody at the time of filing of the 12 federal petition. Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam); Bailey v. Hill, 13 599 F.3d 976, 978-79 (9th Cir. 2010). The Court notes that Petitioner’s claims also appear 14 non-cognizable in federal habeas because success on the merits “would not necessarily 15 lead to immediate or speedier release.”3 See Nettles v. Grounds, 830 F.3d 922, 934-35 16 (9th Cir. 2016). Accordingly, as Petitioner was not in custody when he filed his federal 17 petition as contemplated by 28 U.S.C. § 2254, the Court lacks jurisdiction to grant him 18 habeas relief. 19 In addition, this Court denied Petitioner federal habeas corpus relief in 2017. See 20 Jones v. Palmer, Case No. 3:11-cv-00467-MMD-WGC, ECF No. 71. The Antiterrorism 21 and Effective Death Penalty Act generally limits habeas petitioners to one round of federal 22 habeas review. 28 U.S.C. § 2244. Petitioner has already received federal habeas review 23 of his conviction. To receive further collateral review, he must secure permission from the 24 2A notice (ECF No. 3) was served on Petitioner and was returned as undeliverable 25 with a notation indicating that Petitioner is no longer at Northern Nevada Correctional Center. (ECF No. 4.) Petitioner has not filed a notice of change of address as required by 26 the Local Rules of Practice. LR IA 3-1, LR 2-2. 27 3A claim is cognizable under Section 2254 only if it falls within the “core” of habeas. Nettles, 830 F.3d at 930. If success on a habeas claim would not necessarily lead to a 28 petitioner’s immediate or earlier release from custody, the claim does not fall within “the 1 || Ninth Circuit to file a second or successive § 2254 habeas petition.* See Brown v. Muniz, 2 || 889 F.3d 661, 667 (9th Cir. 2018) (under § 2244(b)(3), federal district courts lack 3 || jurisdiction to entertain a petitioner's successive habeas petition absent permission from 4 || the court of appeals to do so). Accordingly, the Court denies the Petition and dismisses 5 || this action. 6 || Ill. CONCLUSION 7 It is therefore ordered that Petitioner Robert Charles Jones’s petition for writ of 8 || habeas corpus (ECF No. 1-1) under 28 U.S.C. § 2254 is denied, and this action is 9 || dismissed with prejudice. 10 It is further ordered that Petitioner is denied a certificate of appealability, as jurists 11 || of reason would not find the Court's dismissal of the petition to be debatable or wrong. 12 The Clerk of Court is directed to enter final judgment accordingly and close this 13 || case. 14 DATED THIS 31* Day of July 2024. ALA 16 MIRANDAM.DU. 17 CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 4The All Writs Act, 28 U.S.C. § 1651, allows the Court to grant extraordinary writs where the Court has jurisdiction. Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 28 || 33-34 (2002). Thus, it does not provide an independent basis for jurisdiction for a petition for a writ of mandamus or prohibition. See id.