United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief 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.
I. Procedural History
On September 11, 2007, petitioner was convicted, pursuant to a jury trial, of first degree murder with the use of a deadly weapon. (Exhibit 36). Petitioner was sentenced to two consecutive terms of 20 years to life in the Nevada Department of Corrections. ( Id. ). Petitioner filed a direct appeal. (Exhibit 37). Petitioner's opening brief on appeal was filed on July 17, 2008. (Exhibit 52). On May 5, 2009, the Nevada Supreme Court affirmed petitioner's convictions. (Exhibit 56).
Petitioner filed a post-judgment habeas petition on September 24, 2009. (Exhibit 62). With the assistance of counsel, petitioner filed a supplemental brief in support of the post-judgment habeas petition. (Exhibit 74). The state district court held an evidentiary hearing. (Exhibit 78). On August 30, 2011, the state district court entered written findings of fact, conclusion of law, and order denying the petition. (Exhibit 84). Petitioner appealed the denial of his petition. (Exhibit 87). On May 8, 2012, petitioner's opening brief on appeal was filed. (Exhibit 99). On February 13, 2013, the Nevada Supreme Court affirmed the denial of the post-judgment habeas petition. (Exhibit 109).
Petitioner mailed his federal petition to this Court on March 9, 2013. (ECF No. 1). A first amended petition was filed on May 2, 2013. (ECF No. 6). A second amended petition was filed on May 30, 2013. (ECF No. 8). In the second amended petition, petitioner raises five claims for relief:
Ground 1: Petitioner's Fifth and Fourteenth right to due process was violated the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Ground 2: Petitioner's Fifth, Sixth, and Fourteenth Amendment rights to due process and the effective assistance of counsel were violated when trial counsel failed to seek a continuance in order to review the recorded interview of Shawn Clay and a diagram drawn by Clay.
Ground 3: Petitioners Fifth and Fourteenth Amendment right to due process was violated because the evidence at trial failed to satisfy the requirements of NRS 175.291.
Ground 4: Petitioner's Fifth and Fourteenth Amendment right to due process was violated when the trial court refused to give (a) a limiting instruction regarding gang evidence, and (b) proposed instructions regarding the weighing of accomplice testimony.
Ground 5: Petitioner's Fifth and Fourteenth Amendment right to due process was violated by the cumulative effect of errors at trial.
(ECF No. 8, at pp. 3-20). Respondents move to dismiss the second amended petition. (ECF No. 13). Petitioner filed an opposition to the motion to dismiss. (ECF No. 20). Respondents filed a reply. (ECF No. 22).
A. Grounds 3 ...