Bruce L. Franzen v. Brinkman, Warden
Bruce L. FRANZEN, Petitioner-Appellant, v. BRINKMAN, Warden, Et Al., Respondents-Appellees
Opinion
PER CURIAM:
Appellant Franzen filed a petition for a writ of habeas corpus in the court below, claiming the Nevada State District Court’s delay of over a year in deciding his petition for state post-conviction relief violated his due process rights. The United States District Court dismissed the habeas corpus petition on the ground that petitioner’s assertions of error in the state post-conviction proceeding do not represent an attack on the prisoner’s detention and therefore are not proper grounds for habeas relief. The district court noted the habeas dismissal would not prejudice Franzen’s ability to bring a claim under 42 U.S.C. § 1983 .
A habeas petition must allege the petitioner’s detention violates the constitution, a federal statute, or a treaty. 28 U.S.C. § 2241 (c)(3);
Rose v. Hodges, 423 U.S. 19, 21 , 96 S.Ct. 175, 177 , 46 L.Ed.2d 162 (1975) (per curiam). Whether errors in a state post-conviction review proceeding are addressable through federal habeas corpus is an issue of first impression in this circuit. Four circuits have held they are not.
1
Only one circuit has held to the contrary.
Dickerson v. Walsh, 750 F.2d 150, 153-54 (1st Cir.1984).
We join the majority and affirm the district court’s holding that a petition alleging errors in the state post-conviction review process is not addressable through habe-as corpus proceedings.
AFFIRMED.
1
.
See Hopkinson v. Shillinger, 866 F.2d 1185, 1218-20 (10th Cir.1989);
Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.1987);
Kirby v. Dutton, 794 F.2d 245, 247-48 (6th Cir.1986);
Mitchell v. Wyrick, 727 F.2d 773, 774 (8th Cir.1984) (per curiam);
see also United States ex rel. Curtis v. Illinois, 521 F.2d 717, 721 (7th Cir.1975) (dicta).
How later courts describe this case
Explanatory parentheticals written by citing courts — 21 in all; the most informative distinct ones are shown.
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(finding that errors in the PCR process do not represent an attack on the 24 constitutionality of the prisoner’s detention)
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(agreeing with the majority view and holding that “a petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings”)
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(dismissing habeas petition alleging that errors in state postconviction proceeding violated due process rights, but noting that “dismissal would not prejudice [defendant’s] ability to bring a claim under 42 U.S.C. § 1983”)
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(errors arising in post-conviction proceedings are not cognizable in federal habeas 17 proceedings because they do not represent an attack on Petitioner’s detention)
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(a claim that a state court delay of over a year in deciding his petition for state post-conviction relief violated his due process rights is not cognizable)
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(delay in state habeas 20 proceeding not addressable in federal habeas)
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