United States District Court, D. Nevada
FLORENCIO C. URIBE, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
JENNIFER A. DORSEY, 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 is respondents' motion to dismiss the petition and petitioner's motion for the appointment of counsel.
I. Procedural History
On February 18, 2005, the State charged petitioner and his co-defendant, Salvana Maria Fernandez, with the following: Count 1, first-degree murder; Count 2, in the alternative to Count 1, first-degree murder by means of child abuse; Count 3, in the alternative to Counts 1 and 2 as to petitioner, aiding and abetting first-degree murder by means of child abuse; Counts 5 and 6, in the alternative to Counts 1-4 as to both defendants, second-degree murder; and Count 7, in the alternative to Counts 1-6 as to both defendants, child abuse resulting in substantial bodily harm. (Exhibit 2). The charges were based on the abuse and ultimate death of petitioner's and Fernandez's natural daughter, seven-month-old Monica Uribe. ( Id. ).
The parties stipulated to continue the preliminary hearing so that petitioner could undergo psychological evaluation. (Exhibit 4). Petitioner entered a conditional waiver of the preliminary examination pending evaluation. (Exhibits 6, 7).
In the Fourth Judicial District, County of Elko, the State charged petitioner and Fernandez by criminal information with the same seven counts contained in the criminal complaint. (Exhibit 9).
On June 27, 2005, following the court's review of psychological evaluations and counsel's arguments, the district court found petitioner competent to assist counsel and to understand the proceedings. (Exhibits 14 & 15). The court remanded the matter to the justice court for a preliminary hearing. (Exhibit 14).
Following a preliminary hearing, the justice court bound both defendants over to the district court on all charges. (Exhibits 20 & 21). The State filed a second criminal information charging petitioner and co-defendant Fernandez with the same seven charges. (Exhibit 22). Petitioner pled not guilty. (Exhibit 8, 10/17/05 entry). On March 24, 2006, the court granted Fernandez's motion to sever the trials. (Exhibits 31, 41). The court further ordered that the trial for Fernandez would proceed first. (Exhibit 41).
On June 22, 2006, a jury found Fernandez guilty of child abuse or neglect resulting in substantial bodily harm pursuant to Nevada Revised Statutes 200.508. (Exhibit 49). Fernandez was sentenced to 96-240 months in prison. (Exhibit 90).
Petitioner's trial began on August 21, 2006. (Exhibit 63). On September 1, 2006, the jury found petitioner guilty of child abuse resulting in substantial bodily harm pursuant to NRS 200.508. (Exhibit 87). On October 24, 2006, the court sentenced petitioner to 96-240 months in prison. (Exhibit 91). Petitioner's judgment of conviction was filed on November 7, 2006. (Exhibit 92).
Petitioner appealed his conviction. (Exhibit 93). On direct appeal, petitioner asserted that the prosecution should have been precluded from trying him on the murder counts, and the fact that the jury was ambiguously informed about the co-defendant's conviction likely resulted in a compromised verdict. (Exhibit 99). Petitioner also argued that his sentence was an abuse of discretion. ( Id. ). On April 6, 2007, the Nevada Supreme Court affirmed the conviction. (Exhibit 101). Remittitur issued on May 2, 2007. (Exhibit 102).
On May 24, 2010, petitioner, proceeding pro se, filed a post-conviction habeas petition in the state district court. (Exhibit 111). Appointed counsel filed a supplemental petition on December 30, 2010. (Exhibit 122). At a hearing held on September 28, 2011, petitioner argued that he could overcome the untimely filing of his state post-conviction habeas petition under NRS 34.726 because he was actually innocent. (Exhibit 137). The court orally denied the petition. ( Id. ). On October 5, 2011, the court entered its written order dismissing the petition as untimely pursuant to NRS 34.726. (Exhibit 138). The court filed an amended order dismissing the petition on October 7, 2011. (Exhibit 140).
Petitioner appealed the denial of his state post-conviction habeas petition. (Exhibit 142). On appeal, petitioner argued that the untimely filing of the petition should be excused, based on the fundamental miscarriage of justice theory, because he was actually innocent. (Exhibit 149). Petitioner also argued that his trial counsel was ineffective for failing to appeal faulty charging documents and jury instructions. ( Id. ). On September 12, 2012, the Nevada Supreme Court affirmed the dismissal, finding the petition untimely and that petitioner failed to demonstrate a fundamental miscarriage of justice sufficient to overcome the procedural bar. (Exhibit 156). The Nevada Supreme Court denied petitioner's petition for rehearing and petition for en banc reconsideration. (Exhibits 160 & 162). Remittitur issued on January 14, 2013. (Exhibit 163).
On March 28, 2013, petitioner dispatched his federal habeas corpus petition to this Court. (Doc. 4, at p. 1). Respondents have filed a motion to dismiss the petition. (Doc. 7). Petitioner did not file an opposition to respondents' motion, however, ...