1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3

4 BRIAN KERRY O’KEEFE, Case No. 3:22-cv-00327-LRH-CLB

5 Petitioner, ORDER DISMISSING ACTION 6 v.

7 TIM GARRETT, et al., 8 Respondents. 9 10 11 This habeas corpus action was initiated on July 21, 2022, by Brian Kerry 12 O’Keefe, an individual incarcerated at Nevada’s Lovelock Correctional Center. O’Keefe 13 paid the filing fee on August 3, 2022 (ECF No. 7), so the Court will order the petition 14 filed. On August 8, 2022, O’Keefe filed a motion (ECF No. 8) requesting that the Court 15 take judicial notice of his payment of the filing fee. It is not necessary that the Court take 16 judicial notice of the payment, however, and O’Keefe’s motion for the Court to do so will 17 be denied. 18 The Court now screens O’Keefe’s habeas petition and, finding that the petition 19 does not state a claim on which habeas corpus relief could be granted, the Court will 20 dismiss this action. 21 O’Keefe’s petition is styled as one brought under

. See Petition 22 for Writ of Habeas Corpus (ECF No. 1-1). In the petition, O’Keefe, who is incarcerated 23 pursuant to one or more state court judgments of conviction, challenges a 2004 burglary 24 conviction in Nevada’s Eighth Judicial District Court (Clark County). See

(ECF 25 No. 1-1, p. 2). However,

is the “exclusive vehicle for a habeas petition 26 by a state prisoner in custody pursuant to a state court judgment .... § 2254 is properly 27 seen as a limitation on the general grant of habeas authority in § 2241 that is triggered 1 Lambert,

(9th Cir. 2004), overruled on other grounds by Hayward 2 v. Marshall,

(9th Cir. 2010). Because O’Keefe’s petition reveals that he is 3 in custody pursuant to a state court judgment, § 2254—as opposed to § 2241—is the 4 exclusive vehicle for his habeas petition. Id. The Court will dismiss this action on this 5 ground. 6 Viewed as a petition under § 2254, O’Keefe’s petition would present several 7 issues that cannot properly be analyzed based upon his current petition, largely 8 because his current petition is not on the form required by this Court for a petition for 9 writ of habeas corpus under § 2254. For example, it is unclear whether O’Keefe would 10 be considered “in custody” on his 2004 burglary conviction, as would be required for a 11 petition under § 2254. Also, it appears that the one-year limitations period applicable to 12 a § 2254 petition under the 1996 Anti–Terrorism and Effective Death Penalty Act 13 (“AEDPA”) (see

(d)) expired long ago, and O’Keefe does not allege 14 any colorable basis to overcome that procedural bar; O’Keefe asserts in a generic 15 manner that he is actually innocent, but does not allege that he has discovered the kind 16 of new evidence of actual innocence required to overcome an AEDPA statute of 17 limitations bar. See Schlup v. Delo,

(1995) (“To be credible, [an 18 actual innocence] claim requires petitioner to support his allegations of constitutional 19 error with new reliable evidence—whether it be exculpatory scientific evidence, 20 trustworthy eyewitness accounts, or critical physical evidence—that was not presented 21 at trial.”). Therefore, the Court will not treat O’Keefe’s current petition as one under 22 § 2254, but, rather, will dismiss this action without prejudice to O’Keefe initiating a new 23 habeas action under § 2254, using the correct form to do so. 24 O’Keefe has filed a motion requesting that, “as [an] alternative” the Court should 25 consider converting this action to one under

. See Motion (ECF No. 3). 26 The Court will deny that motion. As this action was initiated as a habeas action, with the 27 petition on a form meant for a habeas action under

, the Court is 1 Furthermore, it is well-established that a prisoner in state custody cannot use a § 1983 2 action to challenge his confinement; the prisoner’s sole federal remedy, with respect to 3 the legal basis for his confinement, is a petition for a writ of habeas corpus. Preiser v. 4 Rodriguez,

(1973). Where, in a § 1983 action, a state prisoner 5 alleges constitutional violations which would necessarily imply the invalidity of his 6 conviction or sentence, such claims are not cognizable under § 1983 unless the 7 conviction or sentence has been invalidated on appeal, by habeas petition, or through 8 some similar proceeding. See Heck v. Humphrey,

, 483–84 (1994) (§ 1983 9 claim not cognizable because allegations were akin to claim of malicious prosecution, 10 which includes as an element a finding that the criminal proceeding was concluded in 11 plaintiff’s favor). O’Keefe makes no allegation that his burglary conviction has been 12 invalidated in any previous proceeding. The Court will, therefore, deny the motion to 13 convert this to a § 1983 action. 14 O’Keefe has filed two motions for appointment of counsel (ECF Nos. 5, 9). 15 “Indigent state prisoners applying for habeas corpus relief are not entitled to appointed 16 counsel unless the circumstances of a particular case indicate that appointed counsel is 17 necessary to prevent due process violations.” Chaney v. Lewis,

, 1196 18 (9th Cir. 1986) (citing Kreiling v. Field,

(9th Cir. 1970) (per curiam)). 19 The court may, however, appoint counsel at any stage of the proceedings “if the 20 interests of justice so require.” See 18 U.S.C. § 3006A; see also Rule 8(c), Rules 21 Governing § 2254 Cases; Chaney,

. The Court determines that 22 appointment of counsel is unwarranted in this case. O’Keefe’s motions for appointment 23 of counsel will be denied. 24 IT IS THEREFORE ORDERED that the Clerk of the Court is directed to 25 separately file the Petition for Writ of Habeas Corpus (ECF No. 1-1). 26 IT IS FURTHER ORDERED that Petitioner’s motion to take judicial notice (ECF 27 No. 8) is DENIED. 1 IT IS FURTHER ORDERED that Petitioner’s motion to convert this action to one 2 || under

(ECF No. 3) is DENIED. 3 IT IS FURTHER ORDERED that Petitioner's motions for appointment of counsel 4 || (ECF Nos. 5, 9) are DENIED. 5 IT IS FURTHER ORDERED that this action is dismissed. 6 IT IS FURTHER ORDERED that the Clerk of the Court is directed to enter 7 || judgment accordingly and close this case. 8 IT IS FURTHER ORDERED that the Clerk of the Court is directed to send a copy 9 || of this order to the Attorney General of the State of Nevada. 10 11 DATED THIS 10th day of August, 2022. 12 - 13 L YR. HICKS 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28