Johnstone v. Nevada Territorial Local Jurisdiction of Public Offense

— 1 — 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ROBERT JOHNSTONE, Case No. 3:23-cv-00596-ART-CLB 5 Petitioner, DISMISSAL ORDER v. — 6 — NEVADA TERRITORIAL LOCAL 7 JURISDICTION OF PUBLIC OFFENSE, et al., — 8 — Respondents. — 9 — 10 On November 27, 2023, pro se Petitioner Robert Johnstone filed a 11 handwritten purported habeas corpus petition under 28 U.S.C. § 1332 and a 12 motion to proceed in forma pauperis (“IFP”). (ECF Nos. 1, 1-2.) Because Johnstone 13 is a prisoner in the custody of the Nevada Department of Corrections and is 14 currently housed at Northern Nevada Correctional Center, this Court previously 15 indicated that the only proper basis for Johnstone’s federal habeas claims is 16 under 28 U.S.C. § 2254 . (ECF No. 3.) As such, on December 4, 2023, this Court 17 instructed Johnstone to file an amended petition on the Court’s 28 U.S.C. § 2254 18 form for state prisoners. (Id.) On December 19, 2023, Johnstone timely complied 19 by filing an “amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 20 2254, F.R.C.P. Rule 5.1(a)(1)(B), 28 U.S.C. § 2403 (b).” (ECF No. 4.) This matter 21 comes before the Court for initial review of the amended petition under the Rules 22 Governing Section 2254 Cases (“Habeas Rules”) and for consideration of the IFP 23 motion. This Court finds good cause exists to grant the IFP motion, but for the 24 reasons discussed below, this Court dismisses the amended petition. 25 I. BACKGROUND 26 Johnstone was convicted of murdering Eugene and Mary Carone in Las 27 Vegas, Nevada on December 18, 1971. See Johnstone v. State, 548 P.2d 1362 28 (Nev. 1976). Johnstone appealed, and the Nevada Supreme Court reversed and 1 remanded for a new trial. Id. Johnstone was retried and again convicted of two 2 counts of first-degree murder. See Johnstone v. State, 566 P.2d 1130 (Nev. 1977). 3 Johnstone previously sought state and federal postconviction relief. Indeed, this 4 Court previously denied Johnstone’s federal habeas petition on the merits in case 5 number CV-N-94-370-ECR. On August 19, 1999, the Ninth Circuit Court of 6 Appeals affirmed this Court’s merits order. See Johnstone v. Dir., Nevada Dep’t of 7 Prison, Case No. 98-16476, 1999 WL 639195 (9th Cir. Aug. 19, 1999). The United 8 States Supreme Court subsequently denied Johnstone’s petition for writ of 9 certiorari. See Johnstone v. Bayer, 529 U.S. 1058 (2000). Since that time, 10 Johnstone has commenced at least one further federal habeas proceeding in this 11 Court. On November 27, 2018, in case number 3:18-cv-00533-MMD-CLB, this 12 Court dismissed Johnstone’s petition because he failed to secure an order from 13 the Ninth Circuit Court of Appeals authorizing a successive federal habeas action. 14 II. DISCUSSION 15 It appears that Johnstone has attempted to circumvent 28 U.S.C. § 2254 16 by labeling his initial petition as proceeding under 28 U.S.C. § 1332 and his 17 amended petition as proceeding, at least in part, under 28 U.S.C. § 2403 . Indeed, 18 in his amended petition, Johnstone claims that he “is not challenging his 19 sentence or conviction.” (ECF No. 4 at 2.) Instead, Johnstone explains that “he is 20 challenging that under N.R.S. 171.010 Nevada state courts lack jurisdiction of 21 trying or convicting foreign alien person(s)[1] of other countries.” However, when 22 a prisoner challenges the legality or duration of his custody, or raises a 23 constitutional challenge which could entitle him to an earlier release, his sole 24 federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 25 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir.1990), cert. denied 11 S.Ct. 1090 26 (1991). Because Johnstone is challenging his conviction by arguing that the state — 27 — 28 1 Notably, Johnstone is Canadian. 1 court lacked jurisdiction over him, his sole federal remedy for such claims is a 2 writ of habeas corpus. Further, to the extent that Johnstone challenges his 3 judgment of conviction other than through a habeas petition, the civil action is 4 barred under Heck v. Humphrey, 512 U.S. 477 (1994). 5 Because Johnstone’s instant amended petition is second and successive, 6 this Court’s lacks jurisdiction over it. See Brown v. Muniz, 889 F.3d 661, 667 (9th 7 Cir. 2018) (“[A] federal habeas petition is second or successive if the facts 8 underlying the claim occurred by the time of the initial petition, . . . and if the 9 petition challenges the same state court judgment as the initial petition.”). If a 10 petitioner has previously filed an application for habeas relief under section 2254 11 which has been denied on the merits, this Court cannot grant relief with respect 12 to a claim that was not presented in the prior application unless: (1) the applicant 13 shows that the claim relies on a new rule of constitutional law made retroactive 14 to cases on collateral review by the Supreme Court, or (2) the factual predicate 15 for the claim could not have been discovered previously through the exercise of 16 due diligence and the facts underlying the claim, if proven and viewed in light of 17 the evidence as a whole, would be sufficient to establish by clear and convincing 18 evidence that, but for constitutional error, no reasonable factfinder would have 19 found the applicant guilty of the underlying offense. 28 U.S.C. § 2244 (b)(2). 20 Johnstone fails to demonstrate the presence of any of these conditions. Moreover, — 21 — 28 U.S.C. § 2244 (b)(3) requires a petitioner to obtain leave from the appropriate 22 court of appeals before filing a second or successive petition in the district court. 23 It does not appear that Johnstone has secured such leave. In fact, he states, “I 24 don’t know if the 9th Circuit gave me permission to file this petition.” (ECF No. 4 25 at 4.) 26 Moreover, Johnstone’s argument that the state court purportedly lacked 27 jurisdiction over him does not present a cognizable claim for federal habeas relief. 28 Federal habeas corpus relief may be granted “only on the ground that [Petitioner] 1 is in custody in violation of the Constitution or laws or treaties of the United 2 States.” 28 U.S.C. § 2254 (a). Federal habeas relief is unavailable for mere 3 violations of state law. See Estelle v. McGuire, 502 U.S. 62 , 67-68 4 (1991) (explaining that “it is not the province of a federal habeas corpus court to 5 reexamine state-court determinations on state-law questions”). The fact that 6 Johnstone’s challenge goes to the state court’s jurisdiction does not alter this 7 principle. “Jurisdiction is no exception to the general rule that federal courts will 8 not engage in collateral review of state court decisions based on state law.” Poe v. 9 Caspari, 39 F.3d 204, 207 (8th Cir. 1994) (petitioner’s claim that the state court 10 lacked jurisdiction to convict is not cognizable in federal habeas); see also Wright 11 v. Angelone, 151 F.3d 151 , 157–58 (4th Cir. 1998) (holding that a state court’s 12 determination of jurisdiction under state law is binding on federal habeas 13 court); U.S. ex rel. Roche v. Scully, 739 F.2d 739 , 741–42 (2d Cir. 1984) (“[N]o 14 federal court to our knowledge has ever granted a writ where a state court’s 15 asserted lack of jurisdiction resulted solely from the provisions of state law.”); 16 Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) (“Determination of whether 17 a state court is vested with jurisdiction under state law is a function of the state 18 courts, not the federal judiciary”); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 19 1991) (noting, without deciding, that it was “not persuaded that a constitutional 20 violation necessarily occurs when the convicting state court acts without 21 jurisdiction purely as a matter of state law”). 22 Here, the Nevada Supreme Court was satisfied that the trial court had 23 jurisdiction under Nevada law to adjudicate Johnstone’s case. See Johnstone v. 24 State, 548 P.2d 1362 , 1362–63 (Nev. 1976) (rejecting Johnstone’s claim that the 25 trial court lacked jurisdiction to try him as a nonresident alien); Johnstone v. 26 State, 566 P.2d 1130, 1131 (1977) (“Because he was a non-resident alien, 27 [Johnstone] contends the district court lacked jurisdiction to try him. We 28 considered and rejected the same argument in Theriault v. State, 92 Nev. 185 , 1 || 547 P.2d 668 (1976), and Paulette v. State, 92 Nev. 71 , 545 P.2d 205 (1976).”). 2 || Accordingly, even if this Court had jurisdiction over this matter, Johnstone’s 3 || challenge to the state court’s jurisdiction would not entitle him to federal habeas 4 || relief. 5 || III. CONCLUSION 6 It is therefore ordered that the motion to proceed IFP (ECF No. 1) is granted. 7 It is further ordered that the amended petition (ECF No. 4) is dismissed. A 8 || certificate of appealability is denied, as reasonable jurists would not find the 9 || dismissal of this action without prejudice to be debatable or wrong. 10 It is further ordered that the Clerk of the Court (1) add Nevada Attorney 11 || General Aaron D. Ford as counsel for Respondents, (2) informally serve 12 |} Respondents by sending a notice of electronic filing to the Nevada Attorney 13 || General’s office of the amended petition (ECF No. 4), this order, and all other 14 || filings in this matter by regenerating the notices of electronic filing,? (3) enter final 15 || judgment dismissing this action, and (4) close this case. 16 Dated this 2"4 day of January 2024. — 17 — 18 Ap os □□□ jd 19 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — 27 ——_—_——_ 2No response is required from respondents other than to respond to any orders 28 || ofa reviewing court.