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Nelson v. Attorney General

United States District Court, D. Nevada

June 2, 2014

JIMMY LEE NELSON, Petitioner,
v.
ATTORNEY GENERAL, et al., Respondents.

ORDER

LARRY R. HICKS, District Judge.

This closed habeas matter under 28 U.S.C. ยง 2254 comes before the Court on a motion (#75) for evidentiary hearing by petitioner in proper person.

Background

In 2000, petitioner Jimmy Lee Nelson was convicted in Nevada state court, pursuant to a jury verdict, of two counts of sexual assault and two counts of lewdness with a minor under fourteen years of age. Petitioner challenged the conviction on direct appeal and state post-conviction review, but his state petition was untimely. The remittitur concluding the appeal on the untimely state petition issued on June 14, 2005.

On or about March 7, 2006, Nelson mailed a federal petition to the Clerk for filing. The Court appointed the Federal Public Defender to represent petitioner. The Court thereafter dismissed the federal petition as untimely. The Ninth Circuit affirmed on appeal in No. 08-15829 in an October 28, 2009, memorandum opinion. The United States Supreme Court denied a petition for a writ of certiorari on March 29, 2010, in No. 09-8777 in that court.

Over two years later, on or about May 29, 2012, petitioner in proper person mailed, inter alia, a motion to reopen to the Clerk for filing.

Petitioner sought to reopen the federal habeas action on the basis that federal habeas counsel allegedly had provided ineffective assistance of counsel in failing to establish his alleged actual innocence in order to overcome the untimeliness of the federal petition.[1] Petitioner asserted in particular in the motion, inter alia, that:

(1) federal habeas counsel "[f]ailed to interview any witnesses, the alleged victims, Doctors involved, former counsel, the district attorney or any one involved in this case whatsoever;"
(2) "... evidence was available to [federal habeas counsel] Debra A. Bookout which denied the fact of the crime, a medical report which was not allowed to be used in the defense of petitioner at his trial [and] [t]he State failed to make this report available to counsel for the defense Debra A. Bookout, " constituting a Brady violation;
(3) "Petitioner's [adult] daughter Brenda Nelson [the victims' mother] had made contact with Dr. Wicker of Las Vegas, NV[;] Dr. Wicker evaluated the two alleged victims... [and] stated [there was] no evidence of sexual abuse of either victim; and Ms. Debra A. Bookout failed to bring forth this evidence;" and
(4) federal habeas counsel informed petitioner in a telephone conversation that "she had an investigator who in fact was going to interview his daughter concerning the medical examination of the two alleged victims, and their recantations of any and all alleged sexual assault by petitioner... which would have led Counsel to discover a medical doctor whose findings would have proved Petitioner's innocence, " but she did not pursue the investigation.

#56, at 1-5.

The Court allowed the Federal Public Defender to withdraw so that the Court could appoint substitute counsel to investigate and potentially pursue the issues raised on petitioner's motion to reopen. As an administrative matter, the Court denied the proper person motion without prejudice with the understanding that the May 29, 2012, mailing date of the proper person motion would be deemed the constructive filing date of a motion to reopen on substantially the same grounds filed by substitute federal habeas counsel after investigating the matter. #67.

On February 7, 2013, the Court appointed Ms. Mary Lou Wilson substitute federal habeas counsel. Ms. Wilson sought and was granted two extensions seeking more ...


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