1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 MIGUEL ANGEL RAMIREZ, Case No. 3:21-cv-00439-MMD-WGC

7 Petitioner, ORDER v. 8 JAMES DZURENDA, et al., 9 Respondents. 10 11 This habeas matter is before the Court on pro se Petitioner Miguel Ramirez’s 12 application to proceed in forma pauperis (“IFP”) (ECF No. 1) and his petition for writ of 13 habeas corpus (ECF Nos. 1-1, 1-2 (“Petition”)) for an initial review under the Rules 14 Governing Section 2254 Cases.1 For the reasons discussed below, the Court dismisses 15 the Petition. 16 I. BACKGROUND 17 The Eighth Judicial District Court for Clark County (“state court”) entered a judgment 18 of conviction for conspiracy to commit sexual assault, kidnapping in the first degree, sexual 19 assault, and open or gross lewdness and sentenced Ramirez to 81 years in the aggregate 20 on June 1, 1987. See State v. Miguel Ramirez, Case No. 86C075318-2.2 Ramirez 21 represents that he was released on parole on October 25, 2010. (ECF No. 1-1 at 12.) A 22 parole revocation hearing was held on November 3, 2015 and the Nevada Board of Parole 23 Commissioners (“Parole Board”) revoked Ramirez’s parole. (Id.) Ramirez filed a state 24 postconviction writ of habeas corpus and the state court denied Ramirez’s postconviction 25 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the 26 Rules Governing Section 2254 Cases in the United States District Courts. 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 1 petition. Ramirez appealed and the Nevada Court of Appeals reversed and remanded, 2 finding that the state court improperly applied procedural bars and dismissed Ramirez’s 3 petition without considering whether Ramirez was afforded due process protections 4 deliniated in Morrissey v. Brewer,

(1972). 5 Ramirez filed a supplemental state postconviction writ of habeas corpus and the 6 state court denied his supplemental petition. Ramirez appealed and the Nevada Court of 7 Appeals reversed and remanded to the state district court to grant the writ and order the 8 parole board to hold a new revocation hearing. In May 2020, the parole board held a 9 revocation hearing, and found Ramirez violated parole, and granted him credit for time 10 served. (ECF No. 1-1 at 14.) Ramirez appealed and the Nevada Court of Appeals 11 dismissed the appeal finding that no statute or court rule provides for an appeal from a 12 decision of the parole board and that the state district court did not preside over a parole 13 revocation proceeding or render a decision resolving a parole revocation matter. Ramirez 14 alleges in his Petition his detention from 2015 to January 2020 was unconstitutional and a 15 fundamental miscarriage of justice. 16 Ramirez provides that he was released from custody. An examination of the records 17 of the relevant state courts in this case and a search using the inmate locator tool on the 18 Nevada Department of Corrections’ website3 verify that Ramirez is currently not in custody. 19 II. IFP APPLICATION 20 Under

(a) and the Judicial Conference Schedule of Fees, a $5.00 21 filing fee is required to initiate a habeas action in a federal district court. The Court may 22 authorize a person to begin an action without prepaying fees and costs if the person 23 submits an IFP application on the approved form along with the appropriate supporting 24 documentation. See

(a); LSR 1-1, LSR 1-2. Although Ramirez submitted 25 the required form, Ramirez paid the filing fee on October 26, 2021. (ECF No. 3.) The Court 26 therefore denie his IFP application (ECF No. 1). 27 /// 28 1 III. DISCUSSION 2 Under Habeas Rule 4, the assigned judge must examine the habeas petition and 3 order a response unless it “plainly appears” that petitioner is not entitled to relief. See 4 Valdez v. Montgomery,

(9th Cir. 2019). This rule allows courts to screen 5 and dismiss petitions patently frivolous, vague, conclusory, palpably incredible, or 6 false. See Hendricks v. Vasquez,

(9th Cir. 1990) (collecting cases). 7 Courts may also dismiss claims at screening for procedural defects. See Boyd v. 8 Thompson,

(9th Cir. 1998). 9 The Petition fails to allege a cognizable federal habeas claim. The Antiterrorism and 10 Effective Death Penalty Act (“AEDPA”) “places limitations on a federal court’s power to 11 grant a state prisoner’s federal habeas petition.” Hurles v. Ryan,

(9th 12 Cir. 2014) (citing Cullen v. Pinholster,

(2011)). A state inmate is entitled 13 to federal habeas relief only if he or she is being held in custody in violation of the 14 Constitution, laws, or treaties of the United States. See

(a). “Thus, a 15 habeas corpus petition must allege a deprivation of one or more federal rights to present 16 a cognizable federal habeas corpus claim.” Burkey v. Deeds,

(D.

). In narrow circumstances, a state law may create a constitutionally protected 18 liberty interest if the law (1) sets forth the substantive predicates to govern the official 19 decision-making and (2) contains explicitly mandatory language, i.e., a specific directive 20 to the decision-maker that mandates a particular outcome when the substantive predicates 21 have been met. See, e.g., Ky. Dep’t of Corr. v. Thompson,

(1989). 22 Federal habeas relief is unavailable “for errors of state law.” Lewis v. Jeffers, 497

, 780 (1990). A state’s interpretation of its own laws or rules provides no basis for 24 federal habeas relief because no federal question arises. See Estelle v. McGuire,

(1991) (federal courts may not reexamine state court decisions on state 26 law issues). A petitioner “may not transform a state-law issue into a federal one merely by 27 asserting a violation of due process.” Langford v. Day,

(9th Cir. 1997). 28 /// 1 Although Ramirez mentions “due process,” “equal protection,” and “cruel and 2 unusual punishment” in the Petition, his claims present no federal question because they 3 plainly involve the application or interpretation of state law regarding his parole revocation 4 hearings. See Swarthout v. Cooke,

, 220-22 (2011) (noting that the Supreme 5 Court has “long recognized that a mere error of state law is not a denial of due process”). 6 Moreover, Nevada inmates possess no liberty interest in being released on parole. See 7 Moor v. Palmer,

(9th Cir. 2010). Ramirez’s claims are questions of 8 state law and therefore not cognizable in federal habaes corpus proceedings. 9 In addition, in order to obtain habeas relief under Section 2254, Ramirez 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 federal 12 petition. See Maleng v. Cook,

(1989) (per curiam); Bailey v. Hill, 599

(9th Cir. 2010). The Court notes that Ramirez’s claims also appear non- 14 cognizable in federal habeas because success on the merits “would not necessarily lead 15 to immediate or speedier release.”4 See Nettles v. Grounds,

(9th 16 Cir. 2016). Accordingly, as Ramirez was not in custody when he filed his federal Petition 17 as contemplated by

, the Court lacks jurisdiction to grant him habeas 18 relief. 19 It is therefore ordered that this action is dismissed without prejudice. 20 It is further ordered that Petitioner Miguel Ramirez is denied a certificate of 21 appealability as jurists of reason would not find the dismissal of the petition to be debatable 22 or wrong. 23 It is further ordered that Ramirez’s application to proceed in forma pauperis (ECF 24 No. 1) is denied. 25 /// 26

27 4A claim is cognizable under Section 2254 only if it falls within the “core” of habeas. Nettles v. Grounds,

(9th Cir. 2016). If success on a habeas claim would 28 not necessarily lead to a petitioner’s immediate or earlier release from custody, the claim 1 The Clerk of Court, pursuant to Rule 4 of the Rules Governing Section 2254 Cases 2 || is directed to make an informal electronic service upon Respondents by adding Nevad. 3 || Attorney General Aaron D. Ford as counsel for Respondents and directing a notice c 4 || electronic filing of this order to his office. No response is required from Respondents othe 5 || than to respond to any orders of a reviewing court. 6 The Clerk of Court is further directed to enter a final judgment accordingly 7 || dismissing this action without prejudice, and close this case. 8 DATED THIS 30" Day of November 2021. 9 — 10 ( f ) / " MIRANBA M. DU 12 CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28