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Bray v. Palmer

United States District Court, D. Nevada

July 14, 2014

ROBERT BRAY, Petitioner,
JACK PALMER, et al., Respondents.


MIRANDA M. DU, 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. This matter comes before the Court on the merits of the remaining grounds of the petition.


Petitioner was arrested in Reno, Nevada, in August of 1997 and charged with three counts of armed robbery and three counts of ex-felon in possession of a firearm. (Exh. 59, at p. 1.[1]) Petitioner invoked his right to a trial within sixty (60) days of arraignment, pursuant to Nevada Revised Statute § 178.556(2). Subsequently, newly appointed counsel, Robert Bell, requested a continuance and petitioner waived his right to a trial within sixty (60) days of his arraignment. (Exh. 14.) The state district court set trial for January 26, 1998. ( Id. )

On October 15, 1997, petitioner escaped from the Washoe County Jail. (Exh. 59.) As a result, the State of Nevada filed a criminal complaint charging petitioner with escape and the Reno Justice Court issued an arrest warrant. ( Id. ) A hold request was issued on the escape charge on October 15, 1997. ( Id. )

On October 22, 1997, petitioner was arrested in San Diego, California, for felony offenses committed following petitioner's escape from the Washoe County Jail. (Exh. 59, at p. 2.) In July of 1998, a California state court sentenced petitioner to serve eleven (11) years in prison in California. ( Id. ) When petitioner failed to appear in state district court in Nevada for his January 1998 trial on the pending armed robbery and possession of weapon charges, the state district court issued a bench warrant for petitioner's arrest. (Exh. 20.) Thereafter, on March 3, 1999, petitioner was formally notified under the Interstate Agreement on Detainers (IAD) that Nevada authorities lodged a detainer against him regarding the robbery and ex-felon charges. (Exh. 59, at p. 3.) Petitioner took no action to invoke his rights under the IAD after he received this notice. ( Id., at p. 4.)

On September 17, 2007, while serving his California sentence, petitioner received a notice pursuant to the IAD addressing all of the pending, untried robbery charges, weapons possession charge, and escape charge. Petitioner formally requested a final disposition of the listed charges. Although petitioner had received prior IAD notices related to these charges and interacted with California officials regarding those notices, the 2007 request was the first time petitioner notified the Washoe County District Attorney's Office and the state district court of his desire to bring the pending, untried charges to final disposition. (Exh. 59, at pp. 3-5.)

Petitioner returned to Washoe County in autumn of 2007, and the state district court appointed an attorney from the Washoe County Alternate Public Defender's office, Carter Conway, to represent petitioner. Conway testified at the evidentiary hearing on petitioner's state habeas petition that he investigated petitioner's case with respect to the possibility of filing a motion to dismiss based on violations of the IAD. He testified that he advised petitioner of his conclusion that such a motion was not likely to succeed. Both Conway and the petitioner testified that with petitioner's consent, counsel began negotiating with the State to reach a final resolution to the charges. (Exh. 59, at pp. 5-7.

Pursuant to negotiations with the State, on April 3, 2008, petitioner entered a guilty plea to a single count of armed robbery. (Exh. 23, 24, 25 and 59, at pp. 7-8.) On May 12, 2008, the state district court entered judgment and sentenced petitioner to two consecutive terms of 36 to 120 months for the armed robbery and deadly weapon enhancement. (Exh. 27.) Petitioner did not pursue a direct appeal.

On April 1, 2009, petitioner filed a state post-conviction habeas petition. (Exh. 30.) He asserted the following claims: (1) ineffective assistance of counsel; (2) violation of his rights to a speedy trial and due process; and (3) violation of his Fifth, Sixth and Fourteenth Amendment rights based on the State's failure to comply with the IAD. ( Id. ) The state district court appointed counsel to represent petitioner during his post-conviction proceedings, and counsel filed a supplemental petition. (Exh. 32 & 39.) The supplemental petition asserted violations of the IAD had violated his constitutional rights to a speedy trial and due process and that he was denied his constitutional right to effective assistance of counsel. (Exh. 39.)

The state district court held an evidentiary hearing on petitioner's post-conviction habeas petition. (Exh. 48.) On July 30, 2010, the state district court filed findings of fact, conclusions of law, and an order denying petitioner's post-conviction habeas petition. (Exh. 59.) Petitioner appealed the denial of his petition. (Exh. 62.) In an order filed June 8, 2011, the Nevada Supreme Court affirmed the denial of the post-conviction habeas petition. (Exh. 83.) The Nevada Supreme Court determined that petitioner's IAD claims were procedurally defaulted and that the denial of relief for his ineffective assistance of counsel claims was supported by substantial evidence. ( Id. )

Petitioner dispatched this federal habeas petition to this Court on June 20, 2011, which contains three grounds for relief. (Dkt. no. 7.) Respondents moved to dismiss the petition. (Dkt. no. 12.) By order filed March 29, 2012, this Court granted the motion to dismiss in part, finding that Ground 1(a) of the petition is unexhausted, and that Grounds 2 and 3 of the petition are procedurally barred. (Dkt. no. 31.) The Court gave petitioner three options for proceeding with respect to his exhausted claim: (1) abandoning his unexhausted claim; (2) dismissing the entire petition without prejudice; or (3) seeking a stay to return to state court to exhaust the claim. (Dkt. no. 31, at pp. 8-9.) In response, petitioner filed a motion for reconsideration. (Dkt. no. 33.) On June 5, 2012, the Court denied petitioner's motion for reconsideration and reiterated petitioner's three options for dealing with this unexhausted claim. (Dkt. no. 35.) Petitioner elected to abandon unexhausted Ground 1(a). (Dkt no. 36.) Respondents have filed an answer to the remaining portions of the petition, Grounds 1(b) and 1(c). (Dkt. no. 40.) Petitioner filed a reply to the answer on August 21, 2012. (Dkt. no. 42.)


The Antiterrorism and Effective Death Penalty Act ("AEDPA"), at 28 U.S.C. § 2254(d), provides the legal standard for the Court's ...

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