Eby v. Ford

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 DONALD EBY, Case No. 3:22-cv-00256-ART-CSD

4 Petitioner, ORDER v. 5 AARON FORD, 6 Respondent. 7 8 Pro se Petitioner Donald Eby filed a Petition for Writ of Habeas Corpus 9 under 28 U.S.C. § 2254 and paid the $5 filing fee on June 7, 2022. (ECF No. 1 10 (“Petition”).) This Court conducted an initial review of Eby’s Petition on June 21, 11 2022, finding that the Petition was defective because Eby failed to present any 12 claims. (ECF No. 3.) This Court dismissed Eby’s Petition without prejudice and 13 with leave to amend. (Id. at 4.) Eby has now filed a Protective Amended Petition 14 for Writ of Habeas Corpus under 28 U.S.C. § 2254 and a Motion to Stay. (ECF 15 Nos. 4 (“Motion”), 5 (“Amended Petition”).) As such, this matter comes again 16 before this Court on initial review under the Rules Governing Section 2254 Cases 17 (“Habeas Rules”). Following review of the Amended Petition, this Court orders Eby 18 to show cause why it should not be dismissed as moot. 19 I. BACKGROUND1 20 Eby challenges a conviction and sentence imposed by the Ninth Judicial 21 District Court for Douglas County (“state court”). State of Nevada v. Donald Eby, 22 Case No. 2017-CR-00054.2 On June 8, 2018, the state court entered a judgment 23 of conviction, pursuant to a jury verdict, of battery causing substantial bodily 24 harm. Eby was sentenced to 12 to 48 months.3 Eby appealed, and the Nevada 25

26 1 For clarity purposes, this Court repeats this background section initially contained within its June 21, 2022, order. (ECF No. 3.) 2 The court takes judicial notice of the online docket records of the Nevada appellate courts. The docket records may 27 be accessed by the public online at: http://caseinfonvsupremecourt.us/public/caseSearch.do. 3 The inmate locator page on the state corrections department’s website indicates Eby was granted parole on January 28 10, 2020. 1 Court of Appeals affirmed on June 17, 2019. Remittitur issued on July 16, 2019. 2 It appears that on November 14, 2019, Eby filed a state petition for writ of habeas 3 corpus. The state court denied post-conviction relief, Eby filed a post-conviction 4 appeal, and the Nevada Court of Appeals affirmed the denial on March 5, 2021. 5 Remittitur issued on June 22, 2021. It appears Eby then moved for the state 6 court to vacate his judgment of conviction and entry a full exoneration order. The 7 state court denied the motion, and Eby is currently appealing that decision. 8 II. DISCUSSION 9 Habeas Rule 4 requires the assigned judge to examine the habeas petition 10 and order a response unless it “plainly appears” that the petition is not entitled 11 to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule 12 allows courts to screen and dismiss petitions that are patently frivolous, vague, 13 conclusory, palpably incredible, false, or plagued by procedural defects. Boyd v. 14 Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. Vasquez, 908 F.2d 15 490, 491 (9th Cir. 1990) (collecting cases). 16 The federal habeas statute gives district courts jurisdiction to entertain 17 petitions challenging a judgment of conviction only for persons who are “in 18 custody” for the conviction when the petition is filed. See, e.g., Maleng v. Cook, 19 490 U.S. 488, 490–91 (1989). A habeas petitioner is no longer “in custody” under 20 a judgment of conviction for purposes of federal habeas jurisdiction if the 21 sentence imposed by the judgment has fully expired before the federal petition is 22 filed. Maleng, 490 U.S. at 492; De Long v. Hennessey, 912 F.2d 1144, 1146 (9th 23 Cir.1990). 24 The state corrections department’s website indicates that Eby’s sentence 25 started on June 4, 2018. As such, his 12-to-48-month sentence expired on or 26 before June 4, 2022. Eby’s Amended Petition was not filed until July 29, 2022. 27 As such, it appears that Eby was no longer “in custody” for purposes of federal 28 habeas jurisdiction since his sentence was fully expired before his Amended 1 || Petition was filed. See Maleng, 490 U.S. at 492. Ill. CONCLUSION 3 It is therefore ordered that Eby show cause within 45 days of entry of this 4 || order why this action should not be dismissed as moot. If Eby does not timely 5 || respond to this order, the Amended Petition will be dismissed with prejudice 6 || without advance notice. If Eby responds but fails to show with specific, detailed, 7 || and competent evidence why the Amended Petition should not be dismissed as 8 || moot, the action will be dismissed with prejudice. This Court will not consider 9 || any assertions of fact that are not specific as to time and place, that are not made 10 |} pursuant to a declaration under penalty of perjury based upon personal 11 || knowledge, and/or that are not supported by competent evidence. 12 It is further ordered that the Clerk of the Court add Aaron Ford, Attorney 13 || General of the State of Nevada, as counsel for respondents, electronically serve 14 || respondents’ counsel a copy of the Amended Petition (ECF No. 5) and Motion 15 || (ECF No. 4), electronically provide respondents’ counsel a copy of this order, and 16 || electronically provide respondents’ counsel copies of all items previously filed in 17 || this case by regenerating the Notices of Electronic Filing. Respondents’ counsel 18 || must enter a notice of appearance within 21 days of entry of this order. 19 It is further ordered that respondents respond to Eby’s filing of a show of 20 || cause within 30 days of receipt of that filing. Eby may file a reply 15 days following 21 || receipt of respondents’ response. 22 A scheduling order on the briefing of the Motion and Amended Petition will 23 || be issued, if necessary, following resolution of this jurisdiction matter. 24 DATED THIS 11th day of August 2022. 25 26 Aras jlosect Je 27 ANNER.TRAUM 28 UNITED STATES DISTRICT JUDGE