United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. Before the court are respondents' motion to dismiss the amended petition (ECF No. 23) and petitioner's motions to extend prison copywork (ECF Nos. 30 & 31).
I. Procedural History
On May 21, 2008, the state filed an amended criminal complaint which charged petitioner with the following five counts: first degree kidnapping resulting in substantial bodily harm, attempted murder, battery constituting domestic violence with substantial bodily harm, assault with a deadly weapon, and robbery with the use of a deadly weapon. (Exhibit 1). On May 21, 2008, after a preliminary hearing, the justice court bound petitioner over on all five counts except attempted murder. (Exhibits 1 & 2).
The state filed an information on May 22, 2008. (Exhibit 3). At his arraignment on May 29, 2008, petitioner pled not guilty and invoked the 60-day rule. (Exhibit 4). The court set calendar call for August 27, 2008, and trial for September 2, 2008. ( Id. ).
On June 18, 2008, petitioner filed a motion to dismiss appointed counsel Geller and appoint new counsel because petitioner claimed that Geller failed to communicate with him or visit him at the Clark County Detention Center (CCDC), and failed to investigate any defense in mitigation of his sentence. (Exhibit 5). On June 30, 2008, the court denied petitioner's motion. (Exhibit 6).
On July 18, 2008, petitioner filed a pretrial petition for a writ of habeas corpus, arguing that the kidnapping charge should be dismissed because the victim's confinement was incidental to the battery resulting in substantial bodily harm. (Exhibit 7). The state filed a return to the petition. (Exhibit 9). On August 20, 2008, the court denied the petition. (Exhibit 10).
On October 23, 2008, petitioner filed another motion to dismiss counsel Geller and appoint new counsel, which was identical to the June 18, 2008 motion. (Exhibit 11). On November 5, 2008, the court denied the motion. Petitioner then requested to represent himself. The court set a Faretta hearing for November 12, 2008. (Exhibit 12). On November 12, 2008, the court granted petitioner's motion to represent himself and appointed the public defender as stand-by counsel. (Exhibit 13).
On November 17, 2008, petitioner filed a motion for discovery and all favorable evidence. (Exhibit 14). On November 21, 2008, petitioner filed a motion for a continuance of the September 2, 2008 trial date to February 2009. (Exhibits 15). At the calendar call on November 26, 2008, the court granted petitioner's motion for discovery and for a continuance, and also granted the state's motion to amend the information. (Exhibit 16). Trial was re-scheduled for February 23, 2009. ( Id. ). The amended information was filed on November 26, 2008. (Exhibit 17).
On December 8, 2008, petitioner filed another motion to dismiss support-counsel and to appoint alternate counsel. (Exhibit 18). Petitioner alleged that Geller failed to visit him at CCDC, failed to provide complete discovery including a transcript of a 911 call from May 1, 2008, failed to maintain attorney/client confidentiality during phone conversations, and failed to direct necessary investigatory personnel to visit him. ( Id. ). At a hearing on the motion, on January 14, 2009, prosecutor Smith informed the court that he had personally turned over to petitioner all the discovery he had requested, except for the 911 transcript, which he gave to petitioner in open court. (Exhibit 19). Stand-by counsel Geller informed the court that investigator Everett had visited petitioner; he also informed the court that he had a copy of the entire file. ( Id. ). The court granted the motion and appointed counsel Frank Kocka as counsel (not stand-by counsel). ( Id. ). The court continued the February 23, 2009 trial and set a status check hearing. ( Id. ). At status check hearings on January 21 and 26, 2009, the court set trial for April 20, 2009. (Exhibits 20 & 21).
On March 12, 2009, petitioner filed a motion to dismiss support-counsel and appoint alternate counsel. (Exhibit 22). At a hearing on March 30, 2009, petitioner withdrew the motion. Attorney Kocka advised the court that he had reviewed all discovery with petitioner. (Exhibit 23).
At the calendar call on April 15, 2009, counsel Kocka requested compliance with a subpoena to obtain records which may have shown that petitioner had an alibi. (Exhibit 24). Counsel Kocka also requested a continuance. ( Id. ). The court ordered the records to be produced and granted counsel's motion for a continuance. ( Id. ). Trial was re-set for June 22, 2009. ( Id. ).
On April 16, 2009, the state filed a motion to conduct a video-taped deposition of Dr. Richard Schwartz, who had treated the victim and who would be out of the country at the time of trial. (Exhibit 25). Petitioner's counsel had no opposition to the motion, and the court granted the motion. (Exhibit 26). The parties later agreed to call off Dr. Schwartz's deposition, as a different doctor would testify at trial. (Exhibit 27).
On June 22, 2009, the jury trial began; four days later the jury found petitioner guilty of firstdegree kidnapping, battery constituting domestic violence with substantial bodily harm, robbery, and misdemeanor assault. (Exhibits 28, 29, 30, 31, 32 & 33).
At the sentencing hearing on August 10, 2009, the court sentenced petitioner to 5 years to life on the first-degree kidnapping, a consecutive 12-36 months on the battery constituting domestic violence with substantial bodily harm, 26-120 months on the robbery, to run concurrently with the kidnapping sentence, and time served on the assault, with 462 days credit for time served. (Exhibit 34). On August 14, 2009, the judgment of conviction was filed. (Exhibit 35).
Petitioner filed a notice of appeal on August 18, 2009. (Exhibit 36). Appellant's opening brief, filed by counsel Gamage, was filed on March 29, 2010. (Exhibit 37). On April 8, 2010, the state filed its answering brief. (Exhibit 38). On July 15, 2010, the Nevada Supreme Court filed its order affirming the convictions. (Exhibit 39). Remittitur issued on August 10, 2010. (Exhibit 40).
On October 5, 2010, petitioner filed a motion for the production of documents, papers, pleadings, and tangible property of defendant. (Exhibit 41). On October 20, 2010, the court granted petitioner's motion. (Exhibit 42). The court also granted petitioner's motion to withdraw counsel Gamage. ( Id. ).
On December 1, 2010, petitioner filed a motion for discovery which alleged that he didn't receive discovery. (Exhibit 43). The state filed an opposition. (Exhibit 44). On December 15, 2010, the court granted the motion in part and directed prior counsel Kocka to provide petitioner with the items not previously provided. (Exhibit 45).
On December 27, 2010, petitioner filed another motion for discovery which described additional documents that he had not received. (Exhibit 46). On January 12, 2011, the court granted the motion in part and directed prior counsel Gamage to provide the documents to petitioner. (Exhibit 47).
On April 11, 2011, petitioner filed a post-conviction habeas petition and an accompanying memorandum in the state district court. (Exhibits 48 & 49). On August 12, 2011, the state filed an opposition to the post-conviction habeas petition. (Exhibit 50). The state district court held a hearing on the petition on October 24, 2011, at which the court denied the petition. (Exhibit 51). On December 22, 2011, the state district court filed findings of fact, conclusions of law, and order denying the petition, except as to ground 10, concerning a clerical error in the judgment of conviction. (Exhibit 53). The state district court filed an amended judgment of conviction which corrected the "first degree kidnapping resulting in substantial bodily harm" language in the original judgment of conviction to state "first degree kidnapping." (Exhibit 54; Exhibit 34). Petitioner appealed the denial of the post-conviction habeas petition. (Exhibit 52).
On February 21, 2012, while the appeal from the denial of the post-conviction habeas petition was pending, petitioner filed a motion for transcripts at state expense in state district court. (Exhibit 55). On March 7, 2012, the state district court heard the matter and denied the motion. (Exhibit 58). The court's written order denying the motion was filed on March 28, 2012. (Exhibit 59). Petitioner appealed. (Exhibit 60). By order filed May 17, 2012, the Nevada Supreme Court dismissed the appeal for lack of jurisdiction. (Exhibit 61).
On July 25, 2012, petitioner filed a motion for an enlargement of time to file a petition for rehearing of his post-conviction habeas petition. (Exhibit 63). The state district court denied the motion at a hearing on August 6, 2012. (Exhibit 65). The state district court filed a written order denying the motion on August 20, 2012. (Exhibit 66).
On October 8, 2012, the Nevada Supreme Court issued its order affirming the district court's denial of the post-conviction habeas petition. (Exhibit 67). Remittitur issued on November 2, 2012. (Exhibit 68).
On August 8, 2012, petitioner dispatched his original federal habeas petition to this court. (ECF No. 1-1). By order filed January 31, 2013, the court ordered the original petition to be filed by the clerk and directed a response to the petition. (ECF No. 6). The petition was filed on that date. (ECF No. 7). Respondents filed a motion to dismiss on March 18, 2013. (ECF No. 9). On April 15, 2013, petitioner filed a motion to amend the petition, along with a proposed amended petition. (ECF Nos. 18 & 18-1). Respondents did not oppose the motion. (ECF No. 20). On April 30, 2013, the court granted petitioner's motion to file an amended petition and denied respondents' motion to dismiss without prejudice. (ECF No. 21). The amended federal petition was filed at ECF No. 22. Petitioner's amended federal ...