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Dean v. Legrand

United States District Court, D. Nevada

March 13, 2014

TRAVIS REMAUL DEAN, Petitioner,
v.
ROBERT LEGRAND, et al., Respondents.

ORDER

ROBERT C. JONES, District Judge.

This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte inquiry into whether the petition is time-barred because it was not filed within the one-year limitation period in 28 U.S.C. § 2244(d)(1), as well as on multiple motions (including ## 1-2, 1-3, 3, 6, 10, 11, 12, 16 & 18) referred to further infra. This order follows upon an earlier show-cause order (#14) and petitioner's response (#15) thereto.

Background

The papers presented along with the online docket records of the state courts reflect the following.

Petitioner Travis Remaul Dean, in principal part in his papers, challenges his Nevada state conviction, pursuant to a guilty plea, of first-degree murder in No. C91671 in the state district court. He was sentenced to life with the possibility of parole.

The judgment of conviction was filed on August 22, 1990. Petitioner did not file a direct appeal, but he pursued a state post-conviction petition. The remittitur concluding the state post-conviction appeal was issued on or about July 16, 1996, approximately three months after the April 24, 1996, statutory effective date on which the federal limitation period otherwise would begin running.[1]

Thereafter, petitioner did not file any state proceedings seeking post-conviction or other collateral review of the 1990 conviction or sentence for approximately sixteen years.

However, petitioner did file papers in the state and federal courts demonstrating an ability to seek judicial relief pro se.

In September and December 2002, he filed papers in the state district court seeking to seal his criminal records. He pursued this request for relief through to an adverse decision by the Supreme Court of Nevada in June 2003 in No. 40345.

Meanwhile, in March 2003, petitioner filed a civil rights action in Nevada state court that was removed to this Court under No. 2:03-cv-00630 and later dismissed in February 2004.

In August 2008, petitioner filed a state post-conviction challenging a different state conviction, in No. C238502 in the state district court. Petitioner pursued the petition pro se through a first appeal resulting in a partial remand as well as a second appeal culminating in a May 2010 order in No. 54330 affirming the denial of relief.

In June 2012, petitioner filed a petition in the state district court styled as a petition for commutation of sentence. The state district court denied the petition in July 2012, and it does not appear that petitioner filed an appeal from the denial.

Thereafter, petitioner filed an original writ for extraordinary relief in the state supreme court which that court denied on December 13, 2012, in No. 62041.

On or about March 5, 2013, petitioner mailed the present federal petition for filing.[2]

The Court notes the following as additional backdrop to the discussion herein. Petitioner was sentenced in No. C238502 to a number of term sentence running concurrently, with the longest concurrent term being a term of 72 to 180 months. The sentence in No. C238502 was imposed consecutively to petitioner's sentence on the murder charge in No. C91671. Petitioner has presented copies of papers herein that would appear to indicate that on or about February 3, 2011, he was paroled from his life sentence on the murder conviction to his next consecutive sentence, which would appear to be the sentence in No. C238502, with a minimum 72 month sentence prior to consideration for possible parole.[3]

Discussion

Pursuant to Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001), the Court sua sponte has raised the question of whether the petition is time-barred for failure to file the petition within the ...


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