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Mendoza v. Legrand

United States District Court, D. Nevada

June 3, 2014

ANDRES H. MENDOZA, Petitioner,
v.
WARDEN LEGRAND, et al., Respondents.

ORDER

ROBERT C. JONES, District Judge.

This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review of the amended petition (#10) under Rule 4 of the Rules Governing Proceedings under Section 2254. Following review, it appears that the petition, as amended, is subject to dismissal with prejudice on the basis of procedural default. Petitioner therefore will be directed to show cause why the petition, as amended, should not be dismissed.

Background

The papers on file and the online docket records of the Nevada state courts reflect the following. See, e.g., Harris v. County of Orange, 682 F.3d 1126, 1132-32 (9th Cir. 2012)(a federal court may take judicial notice of matters of public record, including documents on file in federal or state courts).

Petitioner Andres Mendoza seeks to challenge his Nevada state conviction, pursuant to an Alford plea, of attempt lewdness with a child under the age of 14 and attempt sexual assault with a minor under the age of 14. The original judgment of conviction was filed on May 27, 2009, in No. C253233 in the state district court. Petitioner did not file a direct appeal.

An amended judgment of conviction was filed on August 6, 2012, which corrected only the amount of credit for time served by four days. Petitioner appealed, and the Supreme Court of Nevada affirmed in an April 9, 2013, order of affirmance. The ninety-day time period for seeking certiorari review in the United States Supreme Court expired on July 8, 2013.

Meanwhile, on May 6, 2013, petitioner filed a state post-conviction petition, which was denied as untimely on August 20, 2013. Petitioner did not appeal the August 20, 2013, denial.

During the pendency of the first state petition, on July 29, 2013, petitioner filed a second state post-conviction petition, which was denied on October 28, 2013. The Supreme Court of Nevada affirmed the dismissal of the second petition as untimely and an abuse of writ in an April 10, 2014, order of affirmance in No. 64355 in that court. The remittitur issued on May 5, 2014.

In federal court, petitioner mailed his initial suit papers to the Clerk for filing on or about October 31, 2013. On February 18, 2014, the Court dismissed the original papers without prejudice, with an opportunity to amend, because nothing in petitioner's original bare papers set forth any claim for relief. On or about February 25, 2014, petitioner mailed the amended petition herein to the Clerk for filing.

Petitioner asserts in the amended petition that "all of the grounds for this petition have been presented to the... Nevada Supreme Court." #10, at 3 (electronic docketing page 4). The Court accordingly will proceed for purposes of the present show-cause inquiry on an arguendo assumption that all of the claims in the federal petition, as amended, were exhausted in No. 64355 in the state supreme court. The claims in the amended federal petition are directed to alleged errors occurring in connection with the original 2009 judgment of conviction.

Discussion

Petitioner proceeds in his papers on the premise that his state and federal petitions are not untimely under either federal or state law because of the intervening amended judgment of conviction.

The Court will proceed on further arguendo assumptions that: (a) a state court amended judgment of conviction that changes only four days of credit for time served constitutes a "resentencing" for purposes of the Supreme Court's decision in Magwood v. Patterson, 130 S.Ct. 2788 (2010); and (b) the amended judgment of conviction thus qualifies as an intervening new judgment for purposes of applying the federal limitation period as well as in applying successive petition rules as in Magwood. Cf. Wentzell v. Neven, 674 F.3d 1124, 1126-29 (9th Cir. 2012), cert. denied, 133 S.Ct. 2336 (2013)(under Magwood, an amended judgment of conviction entered following a reversal and dismissal of one count constituted an intervening new judgment for purposes of federal successive petition rules).

With those arguendo assumptions, petitioner indeed would be correct that the present federal habeas action is timely under 28 U.S.C. § 2244(d)(1)(A). Both the original papers and the amended petition were filed within one year of the July 8, 2013, expiration of ...


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