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Allen v. Legrand

United States District Court, D. Nevada

August 20, 2014

BRIAN ALLEN, Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

ORDER

MIRANDA M. DU, District Judge.

Before the Court are the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (dkt. no. 5) and respondents' motion to dismiss (dkt. no. 17). Petitioner has not responded to the motion to dismiss, and, therefore, he consents to the Court granting it. LR 7-2(d). The Court finds that the petition is untimely and procedurally defaulted, and the Court grants the motion.

I. PROCEDURAL HISTORY

In the Second Judicial District Court of the State of Nevada, petitioner was charged with first-degree murder with the use of a deadly weapon and robbery with the use of a deadly weapon. (Exh. 5 (dkt. no. 18).) At the time of the offense, petitioner was a minor. The prosecution sought the death penalty. (Exh. 9 (dkt. no. 18).) On October 11, 1999, Petitioner pleaded guilty to both offenses; there was no plea agreement. (Exh. 131 (dkt. no. 22).) A three-judge panel of the state district court held a penalty hearing. (Exh. 133 (dkt. no. 22).) The panel sentenced petitioner to life imprisonment without the possibility of parole for first-degree murder and an equal and consecutive term for committing the murder with a deadly weapon. The panel also sentenced petitioner to prison for a maximum term of one hundred eighty (180) months and a minimum term of seventy-two (72) months for robbery and an equal and consecutive term for committing the robbery with a deadly weapon. Furthermore, the sentences on the robbery count run consecutively to the sentences for the murder count. Judgment was entered on November 8, 1999. (Exh. 134 (dkt. no. 22).) Petitioner did not file a direct appeal of the judgment of conviction.

On March 4, 2002, petitioner filed in state district court his first post-conviction habeas corpus petition. (Exh. 151 (dkt. no. 23).) The state district court dismissed the petition because it was untimely pursuant to Nev. Rev. Stat. § 34.726(1). (Exh. 168 (dkt. no. 23).) Petitioner appealed. On October 7, 2003, the Nevada Supreme Court affirmed, agreeing with the state district court that the petition was untimely. (Exh. 180 (dkt. no. 24).) Remittitur issued on November 4, 2003. (Exh. 181 (dkt. no. 24).)

On October 11, 2004, petitioner filed in state district court his second postconviction habeas corpus petition. (Exh. 182 (dkt. no. 24).) On December 2, 2004, the state district court dismissed the petition. (Exh. 183 (dkt. no. 24).) Petitioner did not appeal.

On October 28, 2004, this Court received from petitioner a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Case No. 3:04-cv-00620-LRH-VPC. The Court directed petitioner to pay the filing fee of five dollars ($5.00). The Court dismissed the action because petitioner did not pay the filing fee within the allotted time. Petitioner did not appeal.

On February 15, 2012, petitioner filed in state district court his third postconviction habeas corpus petition. (Exh. 187 (dkt. no. 24).) The state district court dismissed the petition because it was untimely pursuant to Nev. Rev. Stat. § 34.726(1). (Exh. 191 (dkt. no. 25).) Petitioner appealed. On June 12, 2013, the Nevada Supreme Court affirmed. It held that the petition was untimely pursuant to Nev. Rev. Stat. § 34.726(1). It also held that the petition was an abuse of the writ pursuant to Nev. Rev. Stat. § 34.810(2) because it raised claims that were new and different from the claims that he had raised in his earlier state habeas corpus petitions. (Exh. 202 (dkt. no. 25).) Remittitur issued on July 8, 2013. (Exh. 203 (dkt. no. 25).)

On January 29, 2013, petitioner filed in state district court his fourth postconviction habeas corpus petition; his appeal from the dismissal of his third state habeas corpus petition was pending at the time. (Exh. 201 (dkt. no. 25).) The state district court denied the petition on October 29, 2013, holding that the petition was untimely pursuant to Nev. Rev. Stat. § 34.726. (Exh. 207 (dkt.no. 25).) The Court now takes judicial notice of the docket of the Nevada Supreme Court in Allen v. State, No. 64471.[1] Petitioner appealed the dismissal. On April 10, 2014, the Nevada Supreme Court affirmed. It held that the petition was untimely pursuant to Nev. Rev. Stat. § 34.726(1). It also held that the petition was an abuse of the writ pursuant to Nev. Rev. Stat. § 34.810(2) because it raised claims that were new and different from the claims that he had raised in his earlier state habeas corpus petitions. Remittitur issued on May 7, 2014.

Petitioner mailed the current federal habeas corpus petition to this court on August 5, 2013.

II. STATUTE OF LIMITATIONS

Congress has limited the time in which a person can petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through ...

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