Nilsen v. Howe

Background

Michael David Nilsen, a former California prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254, the federal law allowing a person in state custody to challenge a state-court conviction on federal constitutional or legal grounds. He had been convicted of several motor-vehicle-related misdemeanor charges and sentenced to 20 days in county jail.

The court had previously dismissed Nilsen’s original petition with permission to amend because it could not determine the exact nature of his claims, whether he had exhausted available state-court remedies, or whether he was in custody for purposes of federal habeas jurisdiction.

Court’s Analysis

The court held that the amended petition had not corrected those problems. Rather than stating specific claims, Nilsen described his arrest and prosecution. The court directed him to state specific, numbered claims in any further amended petition.

The court explained that federal habeas claims generally must first be presented to the state courts. For a California misdemeanor conviction, the court described the state review process and stated that a misdemeanant must present the claims to the California Supreme Court. If direct review ends before the California Supreme Court considers the claims, the petitioner must present them through state habeas proceedings. The court instructed Nilsen to identify which claims he had presented in state court and said he could attach copies of state appeals or state habeas petitions.

The court also explained that a federal habeas petitioner must be “in custody” under the conviction or sentence when the petition is filed. Nilsen stated that he was in the constructive custody of the Lake County justice system and would be returned to county jail if the federal petition were denied, but he provided no further support or explanation. The court required more information about that assertion.

Disposition

The court dismissed the amended petition with leave to amend. It ordered that a second amended petition, labeled “SECOND AMENDED PETITION” on its first page, be filed by November 1, 2019. The order stated that failure to amend by that deadline would result in dismissal of the petition.

The court also directed Nilsen to keep it informed of address changes and to comply with court orders in a timely manner, warning that failure to do so could result in dismissal for failure to prosecute. The court did not reach the merits of Nilsen’s underlying challenges to his convictions or prosecution.