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Powell v. Walker

United States District Court, D. Nevada

July 9, 2014

NORMAN T. POWELL, Petitioner,
v.
RICK WALKER, et al., Respondents.

ORDER

HOWARD D. McKIBBEN, District Judge.

This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. ยง2254, filed by Norman T. Powell, a Nevada prisoner represented by counsel. Before the Court is respondents' motion to dismiss Grounds One and Seven of the second amended petition. (ECF No. 104).

I. Procedural History

On August 27, 1995, pursuant to a jury verdict in the Second Judicial District Court for the State of Nevada, petitioner was convicted of three counts of assault with a deadly weapon, one count of being an ex-felon in possession of a firearm, and one count of discharging a firearm from a motor vehicle. (Exhibit 52).[1] The state district court adjudicated petitioner as a habitual criminal pursuant to NRS 208.010. (Exhibit 55). The judgment of conviction was entered on August 10, 1995. ( Id. ). Petitioner filed a direct appeal. (Exhibit 57). By order filed February 26, 1997, the Nevada Supreme Court entered an order affirming in part and reversing in part. (Exhibit 81). The Nevada Supreme Court reversed two of petitioner's assault convictions and remanded the case to the state district court for resentencing. ( Id. ). At the resentencing hearing, on May 16, 1997, petitioner received three concurrent life without the possibility of parole sentences on the convictions of one count of assault with the use of a deadly weapon, one count of being an ex-felon in possession of a firearm, and one count of discharging a firearm from a motor vehicle. (Exhibit 88). Upon a timely appeal, the Nevada Supreme Court consolidated petitioner's appeals from the denial of a motion to correct illegal sentence and from his judgment of conviction and remanded those matters back to the district court for appointment of counsel to represent Powell on appeal. (Exhibit 94). On return to the Nevada Supreme Court and after briefing by the parties (Exhibits 101, 102, 106), on April 13, 1999, the Nevada Supreme Court denied petitioner's claims but found two errors in the judgment's form: (1) the district court incorrectly stated in the judgment of conviction that petitioner was guilty of the crime of being a habitual criminal, when habitual criminality is a status, not a crime; and (2) the district court incorrectly stated that petitioner was sentenced on the habitual criminal allegation, because habitual criminal adjudication is an enhancement of punishment, not a separate offense for which a separate sentence may be imposed. (Exhibit 108). The Nevada Supreme Court remanded the case to the district court to correct the judgment of conviction. ( Id. ). A corrected judgment was filed on April 28, 1999, in which petitioner was sentenced to three concurrent sentences of life without the possibility of parole on the convictions of one count of assault with the use of a deadly weapon, one count of being an ex-felon in possession of a firearm, and one count of discharging a firearm from a motor vehicle. (Exhibit 110). Petitioner appealed the corrected judgment, and the Nevada Supreme Court dismissed the appeal by order filed August 26, 1999. (Exhibit 115). Remittitur issued on September 21, 1999. (Exhibit 117).

On May 2, 2000, petitioner filed a pro per post-conviction habeas petition in the state district court. (Exhibit 118). Following the appointment of counsel and supplemental filings, the district court entered an order denying the post-conviction petition on July 17, 2001. (Exhibit 133). Petitioner appealed. (Exhibit 135). By order filed March 14, 2002, the Nevada Supreme Court dismissed the appeal and remanded to state court because the district court failed to address the legal issues in the petition and made no findings of fact. (Exhibit 150). On July 16, 2004, the district court entered its findings of fact, conclusions of law, and judgment denying the post-conviction habeas petition. (Exhibit 167).

Following a notice of appeal and briefing by the parties, the Nevada Supreme Court filed an order on September 21, 2005, affirming the denial of the post-conviction habeas petition. (Exhibit 187). Petitioner filed a pro per petition for en banc reconsideration (Exhibit 188), which was denied on December 28, 2005. (Exhibit 190). Remittitur issued on January 25, 2006. (Exhibit 191).

Petitioner dispatched his pro per federal habeas petition to this Court on June 25, 2002. (ECF No. 5). The Office of the Federal Public Defender was appointed to represent petitioner. (ECF No. 4). Petitioner's counsel filed a motion to stay proceedings and administratively close this action pending resolution of state court matters. (ECF No. 10). On December 16, 2002, this Court entered an order dismissing the action without prejudice and administratively closing the case to allow petitioner to exhaust his state court remedies. (ECF No. 15). In the order dismissing the case, the Court indicated that this case was subject to being reopened upon a motion by petitioner. (Id.).

Through counsel, petitioner returned to this Court seeking to reopen his case. (ECF No. 33). By order filed March 7, 2006, this Court granted petitioner's motion to reopen this case and directed the filing of an amended petition. (ECF No. 35). Petitioner filed a first amended petition on June 16, 2006. (ECF No. 40). The first amended petition contained seven grounds for habeas corpus relief. ( Id. ).

Respondents filed a motion to dismiss the petition. (ECF No. 57). By order filed August 30, 2007, this Court granted in part, and denied in part, the motion to dismiss. (ECF No. 66). Specifically, the Court ruled that Grounds One and Seven of the first amended petition were unexhausted, and that all remaining grounds were exhausted. ( Id. ). Because the Court found the first amended petition to be mixed, containing both exhausted and unexhausted claims, petitioner was given options for handling the unexhausted claims. ( Id. ). Petitioner filed a motion for reconsideration on September 13, 2007. (ECF No. 67). After briefing by the parties, the Court denied the motion for reconsideration on June 2, 2008. (ECF No. 77).

Pursuant to the options given to petitioner in the Court's prior order, on July 17, 2008, petitioner filed a motion for a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005), to return to state court to exhaust Grounds One and Seven of the first amended petition. (ECF No. 80). On November 12, 2008, this Court granted petitioner's motion for a stay and abeyance while he returned to state court, for the second time, to exhaust state court remedies as to Grounds One and Seven. (ECF No. 89).

On January 23, 2009, petitioner filed a habeas petition in state district court containing the same claims presented in Grounds One and Seven of the first amended federal habeas petition. (Exhibit 197). The state district court denied the petition. (Exhibit 200). Petitioner appealed the denial of the petition. (Exhibit 202). The Nevada Supreme Court affirmed the denial of the petition, finding the petition untimely, successive, and an abuse of the writ. (Exhibit 208). Remittitur issued on October 6, 2010. (Exhibit 209).

Following his second return to state court to exhaust claims, on November 16, 2010, petitioner moved to reopen the instant federal habeas corpus action. (ECF No. 92). By order filed December 21, 2010, this Court granted petitioner's motion to reopen the case. (ECF No. 94). On January 20, 2011, petitioner filed a second amended petition. (ECF No. 95). Respondents filed the instant motion to dismiss on June 7, 2011. (ECF No. 104). Petitioner filed a response in opposition to the motion on July 29, 2011. (ECF No. 110).[2] Respondents filed a reply brief on August 5, 2011. (ECF No. 111). On August 12, 2011, petitioner filed a motion for leave to file a supplement to the opposition. (ECF No. 113). Respondents filed a notice of non-opposition to petitioner's motion. (ECF No. 114). By order filed August 23, 2011, petitioner's motion to file a supplement to the opposition was granted. (ECF No. 115). On August 30, 2011, petitioner filed a supplement to the opposition. (ECF No. 116). The briefing now completed, the Court now addresses the pending motion to dismiss the second amended petition.

II. Discussion

Respondents argue that Ground Seven of the second amended petition is untimely and should be dismissed on that basis. Respondents further argue that Grounds One and Seven of the second amended ...


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