Skinner v. Russell

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 RODERICK SKINNER, Case No. 3:21-cv-00318-MMD-CLB

7 Petitioner, ORDER v. 8 PERRY RUSSELL, et al., 9 Respondents. 10 11 In this habeas corpus proceeding under 28 U.S.C. § 2254, the Court dismissed 12 Ground 1, one of three Grounds for relief contained in Petitioner Roderick Skinner’s 13 habeas petition. (ECF No. 22.) In response, Skinner has filed three motions: (1) motion 14 for leave to amend his petition; (2) motion for reconsideration; and (3) motion for 15 appointment of counsel. (ECF Nos. 23, 24, 25.) Additionally, Skinner has filed a motion 16 for leave to file a supplement to his petition. (ECF No. 32.) For reasons that follow, 17 Skinner’s motions (ECF Nos. 23, 24, 25, 32) are denied. 18 In Ground 1, Skinner alleged his conviction and sentence are unconstitutional 19 because computer evidence supporting his conviction was destroyed before he had an 20 opportunity to seek habeas corpus relief. (ECF No. 9 at 3.) The Court concluded that 21 Ground 1 failed to state a cognizable claim for federal habeas relief because Skinner was 22 convicted based a guilty plea. (See ECF No. 22 at 2 (citing Tollett v. Henderson, 411 U.S. 23 258, 266 (1973)).) Alternatively, the Court concluded that the claim fails because the 24 Antiterrorism and Effective Death Penalty Act of 1996 requires the Court to defer to the 25 Nevada court’s denial of the claim. (Id. at 2-3.) 26 In seeking reconsideration of the Court’s dismissal of the claim, Skinner contends 27 the Court misconstrued Ground 1 because it was not merely about the destruction of 1 rights arising from a subpoenaed witness’s failure to appear at Skinner’s state post- 2 conviction hearing. (Id. at 2.) Even so, claimed errors arising in post-conviction relief 3 proceedings are not cognizable in habeas corpus proceedings under 28 U.S.C. § 2254 4 because they do not challenge a petitioner's detention. See Franzen v. Brinkman, 877 5 F.2d 26 (9th Cir. 1989) (per curiam); see also Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 6 1998) (finding that the post-convictions court’s failure to appoint petitioner counsel in his 7 second post-conviction proceedings did not constitute a basis for a federal habeas claim); 8 Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (stating errors in the post- 9 conviction proceeding were not cognizable in federal habeas corpus proceedings). Thus, 10 Skinner has not provided grounds for this Court to reconsider its dismissal of Ground 1. 11 With respect to his motion for leave to amend his petition (ECF No. 23), Skinner 12 did not attach a proposed amended pleading. See LR 15-1(a) (requiring the moving party 13 to attach the proposed amended pleading to a motion for leave to amend). Based on 14 attachments to Skinner’s reply (ECF No. 29-1) in support of his motion and his motion for 15 leave to supplement his petition (ECF No. 32-1), Skinner wants to add claims alleging his 16 attorney provided ineffective assistance of counsel in his state post-conviction 17 proceeding. Such claims are expressly barred by federal statute. See 28 U.S.C. § 2254(i); 18 Martel v. Clair, 565 U.S. 648, 662 n.3 (2012) (“[28 U.S.C.] § 2254(i) prohibits a court from 19 granting substantive habeas relief on the basis of a lawyer’s ineffectiveness in post- 20 conviction proceedings.”). Accordingly, this Court must deny Skinner’s motions for leave 21 to amend and leave to supplement. See Bonin v. Calderon, 59 F.3d 815, 845 (9th 22 Cir.1995) (articulating that futility of amendment itself justifies the denial of a motion for 23 leave to amend). 24 As for his motion for appointment of counsel (ECF No. 25), Skinner asserts that 25 counsel should be appointed because Skinner’s lack of counsel resulted in the dismissal 26 of Ground 1. For reasons stated, any claim based on the State’s failure to preserve 27 evidence after Skinner’s guilty plea or to provide him with effective assistance of counsel 28 /// 1 || in post-conviction proceedings is without merit. Therefore, the Court’s dismissal of 2 || Ground 1 does not serve as reason to appoint counsel in this case. 3 It is therefore ordered that Petitioner Roderick Skinner's motion for leave to amend || his petition (ECF No. 23), motion for reconsideration (ECF No. 24), motion for 5 || appointment of counsel (ECF No. 25), and motion for leave to file a supplement to his 6 || petition (ECF No. 32) are denied. 7 It is further ordered that Respondents’ motion to strike (ECF No. 31) is denied as 8 || moot. 9 It is further ordered Respondents’ motion for enlargement of time (ECF No. 35) is 10 || granted nunc pro tunc as of June 1, 2022. Respondents will have 30 days from the date 11 || of entry of this order to file an answer to the remaining Grounds for relief in the petition. 12 || Skinner shall have 60 days from the date on which the answer is served on him to file 13 || and serve a reply. 14 It is further ordered that Skinner’s request for entry of a default (ECF No. 36) is 15 || denied. 16 DATED THIS 6" Day of June 2022. 17

19 MIRANBA M60 50 CHIEF UNITED STATES DISTRICT JUDGE

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