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Charles E. Wiig v. Ives

March 2, 2011

CHARLES E. WIIG, PETITIONER,
v.
IVES, RESPONDENT.



ORDER

Petitioner, a federal prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner is currently confined in the federal prison in Herlong, California.This case is before the undersigned pursuant to petitioner's consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

On January 25, 2011, the court dismissed the petition, granting petitioner leave to amend a single claim -- that, in a state proceeding, the Nebraska Court of Appeal erroneously refused to allow petitioner to file a corrected brief. Dckt. No. 8. The court directed petitioner to file an amended petition with sufficient detail about the state proceedings so that the court could review the claim. On February 3, 3011, petitioner filed an amended petition. Dckt. No. 11. He has also filed a motion asking the court to rule on the merits of the claim raised in the state appellate proceeding (Docket No. 9) and a motion asking the court to transfer, rather than dismiss, the case if the court determines that it should have been brought under 28 U.S.C. § 2254 rather than 28 U.S.C. § 2241. ////

I. Background

Petitioner pleaded no contest to one charge of selling methamphetamine in Hall County Nebraska on October 21, 1997. Dckt. No. 11, Am. Pet. at 5. He completed his sentence on June 22, 1998. Id. A few months later, petitioner was again arrested for selling methamphetamine and was charged in federal court for the offense. Id. Petitioner absconded from pretrial release, however, and was not located and tried until 2005, when he was convicted and sentenced to 262 months' imprisonment, which included a sentencing enhancement based on petitioner's prior conviction. Id.; United States v. Wiig, 190 Fed. App'x. 521, 523 (8th Cir. 2006). Petitioner challenged the conviction and sentence in a direct appeal as well as proceedings under 28 U.S.C. § 2255. These proceedings have been detailed in the court's prior screening order.*fn1

In the meantime, petitioner filed a petition for writ of coram nobis in Hall County District Court, a Nebraska state court, arguing that his 1997 state conviction was invalid. Dckt. No. 11 at

5. The petition was filed in October 2007 and denied on June 5, 2009. Id. at 5-6. Petitioner appealed that decision to the Nebraska Court of Appeals, which ordered petitioner to file a replacement brief conforming to court rules about line spacing and citations. Id. at 6, 36. Before petitioner filed the replacement brief, however, the appellate court summarily dismissed the appeal under Nebraska Court Rule of Appellate Practice § 2-107(A)(2), which allows summary dismissal "[w]hen the court determines it lacks jurisdiction." Id. at 6, 37-39.

Petitioner then filed a petition for writ of habeas corpus, ostensibly under 28 U.S.C. § 2241, in the District of Nebraska. Pet. at 4; Wiig v. Ives, No. 8:10CV233 (D. Neb.). In that petition, petitioner raised these issues:

1. That the district court, in ruling on his § 2255 motion, had failed to address the prior conviction issue;

2. That, in a state court appeal, the Nebraska Court of Appeal had erroneously refused to allow him to correct his brief; and

3. That the district court erred in his federal criminal trial in using the prior state-court conviction.

Pet. for Writ of Habeas Corpus, Wiig v. Ives, No. 8:10CV233 (D. Neb.), Dckt. No. 1. The court, construing the petition as brought under 28 U.S.C. § 2254, dismissed it without prejudice, finding that it lacked jurisdiction and that the proper court to hear the petition was this court, the Eastern District of California, because petitioner is incarcerated in Herlong, California. Mem. & Order, Wiig v. Ives, No. 8:10CV233 (D. Neb.), Dckt. No. 6.

The instant petition followed, in which petitioner raised the same three issues raised in his petition to the District of Nebraska, along with one additional issue: that the Bureau of Prisons denied him due process by failing to provide him with access to necessary legal materials while he was incarcerated at F.C.I. Beaumont in Beaumont, Texas. Pet. at 6-8. As mentioned above, the court dismissed all issues without leave to amend, save the issue regarding petitioner's brief in the Nebraska Court of Appeal.

II. Screening

A federal judge entertaining a habeas petition "shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. The petition must be dismissed if on initial review the court finds that "it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing § 2254 Proceedings. An application for federal habeas relief must specify all grounds for relief, state facts supporting each ground and state the relief requested. Rule 2, Rules Governing § 2254 Cases. While under Ninth Circuit precedent, this court must liberally construe the allegations of a prisoner proceeding without counsel, see Roy v. Lampert, 465 ...


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