Marvin Mosby v. RENEE BAKER, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN MOSBY,
Petitioner-Appellant,
v.
RENEE BAKER, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 17-16565
D.C. No.
3:14-cv-00251-MMD-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted February 8, 2019
San Francisco, California
Before: PAEZ and BERZON, Circuit Judges, and FEINERMAN,** District Judge.
Marvin Mosby was convicted of stealing a camera and sentenced by a
Nevada judge to life in prison without the possibility of parole. Proceeding pro se,
Mosby unsuccessfully attempted to file a series of state and federal habeas
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
FILED
FEB 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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petitions. At issue here is the federal district court’s dismissal of Mosby’s final
federal habeas petition (“Mosby III”), filed more than a year after his conviction
was final, as time-barred. Mosby, now represented by counsel, argues that the
district court wrongly dismissed his first federal habeas petition (“Mosby I”), filed
before the statutory deadline. The parties agree that, if the district court wrongly
dismissed Mosby I, Mosby III is timely, and at least one claim, Ground 1, relates
back to the initial filing. We hold that the original dismissal was improper, reverse
the district court’s dismissal of Mosby III, and remand for further proceedings.
Rule 2(d) of the Rules Governing § 2254 Cases requires a petition to
“substantially follow either the form appended to the[] rules or a form prescribed
by a local district-court rule” (emphasis added). Mosby filed his first federal
habeas petition using a state habeas form rather than either of the forms identified
by Rule 2(d). However, Rule 2(d) requires only that petitioners “substantially
follow” one of the two federal forms, not, as the district court appears to have
assumed, that they actually write their answers on it. The three forms are similar
enough that, even though Mosby used the wrong form, he provided the material
information that the specified federal options would have elicited. As a result,
Mosby’s conformance was substantial. See Substantial, Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/substantial (last visited
Jan. 24, 2019) (“[B]eing largely but not wholly that which is specified”);

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Substantial, Oxford English Dictionary (3d. ed. 2012) (“That is, constitutes, or
involves an essential part, point, or feature; essential, material”).
The district court ordered Mosby to refile and then dismissed Mosby I
because District of Nevada Local Rule LSR 3-1 requires “pro se petitioners [to]
use the local § 2254 form.” Mosby is correct that this rule conflicts with Rule 2(d)
of the Rules Governing § 2254 Cases. The local rule requires use of a specific local
form; the federal rule requires only that the petition “substantially follow” either
the local or the model form. District of Nevada Local Rule LR IA 1-2 is clear that
the local rules “apply to all actions and proceedings, except where [they] may be
inconsistent with rules or other laws specifically applicable to those types of
actions or proceedings.” The Rules Governing § 2254 Cases are “rules . . .
specifically applicable” to the filing of habeas proceedings, so the federal rule
takes precedence: Mosby need have only substantially followed one of the forms
prescribed by Rule 2(d).
REVERSED and REMANDED.

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