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Gibbons v. Legrand

United States District Court, D. Nevada

April 3, 2014

WILLIAM ORVAL GIBBONS, Petitioner,
v.
ROBERT LEGRAND, et al., Respondents.

ORDER

LARRY R. HICKS, District Judge.

This habeas matter under 28 U.S.C. ยง 2254 comes before the Court on a sua sponte inquiry as to whether the petition is subject to dismissal as a successive petition, as well as on petitioner's motion (#9) for appointment of counsel. This order follows upon the Court's earlier show-cause order (#7), a subsequent order (#11) limiting the show-cause inquiry only to the successive-petition issue, and petitioner's response (#12) to the show-cause order as so limited.

Background

The papers on file in this action and petitioner's prior habeas action together with the online docket records of the state supreme court reflect the following. The procedural recital below through March 2004 is drawn principally from the March 12, 2004, order of dismissal in No. 3:01-cv-00159-LRH-RAM and the copies of state court record materials filed as exhibits therein.

Petitioner William Gibbons challenges his 1979 Nevada state conviction, pursuant to a jury verdict, of first-degree murder, for the murder of Ernest Guest.

The Supreme Court of Nevada affirmed petitioner's conviction on direct appeal on October 26, 1981. Gibbons v. State, 97 Nev. 520, 634 P.2d 1214 (1981). Petitioner did not thereafter file a petition for a writ of certiorari in the United States Supreme Court.

On or about August 3, 1982, petitioner filed a first state post-conviction petition. The state district court denied the petition; and the state supreme court affirmed, in No. 15057.[1]

On April 26, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA), which, inter alia, adopted a one-year limitation period for federal habeas petitions, became effective.

On April 29, 1996, petitioner filed a second state post-conviction petition. The state district court denied the petition as untimely and successive; and the state supreme court affirmed on that basis, in No. 30087.

On May 26, 1998, petitioner filed a third state post-conviction petition. The state district court denied the petition as untimely and successive; and the state supreme court affirmed on that basis, in No. 34785.

Petitioner thereafter pursued a federal habeas petition in this Court in No. 3:01-cv-00159. This Court dismissed the petition with prejudice on March 12, 2004. The Court held that a number of grounds were procedurally defaulted, and it rejected the grounds that remained for disposition on the merits. The Ninth Circuit affirmed, and the order on mandate was filed in the record of this Court on April 24, 2006.

Nearly six years later, on March 29, 2012, petitioner filed a motion to correct an illegal sentence in the state district court. The state district court denied relief; and the state supreme court affirmed, in No. 61955. The remittitur issued on October 24, 2013.

On or about November 18, 2013, petitioner mailed the present federal petition to the Clerk ...


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