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Mosby v. Baker

United States District Court, D. Nevada

May 23, 2014

MARVIN MOSBY, Petitioner,
v.
RENEE BAKER, et al., Respondents.

ORDER

MIRANDA M. DU, District Judge.

This habeas matter comes before the Court for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The filing fee has been paid.

Following review, it appears that the petition is subject to dismissal with prejudice as time-barred for failure to file the petition within the one-year limitation period in 28 U.S.C. ยง 2244(d)(1). Petitioner therefore will be directed to show cause why the petition should not be dismissed as time-barred.

I. BACKGROUND

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

Petitioner Marvin Mosby challenges his Nevada state conviction, pursuant to a jury verdict, of larceny from the person and his adjudication and sentencing as a habitual criminal under Nevada's "large" habitual criminal statute, in No. C271646 in the state district court. He is sentenced as a habitual criminal to life without the possibility of parole.

The original judgment of conviction was filed on November 15, 2011.

On November 15, 2012, on direct appeal in No. 59839, the Supreme Court of Nevada affirmed the challenged conviction as well as the habitual criminal adjudication and sentence. The court reversed a grand larceny conviction based on double jeopardy and remanded for entry of an amended judgment.

The amended judgment of conviction was filed on January 30, 2013.

The ninety-day time period for filing a petition for a writ of certiorari in the United States Supreme Court expired on February 13, 2013, running from the November 15, 2012, order.

The thirty-day time period for filing a direct appeal from the January 30, 2013, amended judgment of conviction expired on March 1, 2013.

On September 3, 2013, the Clerk of this Court received and filed petitioner's federal petition challenging the conviction and sentence, under Case No. 2:13-cv-01609-APG-VCF. The petition was dismissed without prejudice by a final judgment on February 6, 2014, after petitioner failed to file an amended petition in compliance with the Court's orders.

On March 28, 2014, the Clerk received and filed petitioner's second federal petition challenging the conviction and sentence, under Case No. 3:14-cv-00171-MMD-VPC. The petition was dismissed without prejudice by a final judgment on April 14, 2014, because the action was not properly commenced by payment of the filing fee or submission of a pauper application.

It appears from the state district court online docket that petitioner filed a state post-conviction petition on or about April 3, 2014. Court minutes for April 28, 2014, reflect that the state district court is dismissing the petition as ...


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