United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
On January 22, 2013, this Court received Petitioner's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, an application to proceed in forma pauperis, and a motion for appointment of counsel. (Dkt. no. 1, 1-1, 1-2.) After this Court denied Petitioner's application to proceed in forma pauperis, Petitioner paid the full filing fee. (Dkt. no. 3, 4). On March 7, 2013, this Court appointed a Federal Public Defender for the District of Nevada to represent Petitioner and noted that "timeliness of the petition may be at issue." (Dkt. no. 5 at 1.) On November 15, 2013, Petitioner, counseled, filed his First Amended Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant to 28 U.S.C. § 2254. (Dkt. no. 19.) Pending before the Court is Respondents Warden R. Baker and the Attorney General of the State of Nevada's motion to dismiss the petition. (Dkt. no. 25.)
I. PROCEDURAL HISTORY
On March 15, 2005, the State charged Petitioner with second-degree murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon in the First Judicial District Court of the State of Nevada in and for Carson City. (Exh. 4.) After a five-day trial, a jury found Petitioner not guilty of attempted murder but guilty of second degree murder with the use of a deadly weapon. ( See Exh. 10-12, 14-15, 20.) On February 7, 2006, the state district court sentenced Petitioner to ten years to life, with a consecutive ten years to life for the deadly weapon enhancement. (Exh. 21.) The state district court entered a judgment of conviction on the same day. ( Id. )
On February 24, 2006, Petitioner filed a direct appeal to the Nevada Supreme Court. (Exh. 23.) On October 31, 2007, the Nevada Supreme Court affirmed the judgment of conviction. (Exh. 31.) On November 28, 2007, the Nevada Supreme Court issued its remittitur. (Exh. 33.)
On December 2, 2008, Petitioner filed a counseled state habeas petition in state district court. (Exh. 34.) Petitioner's attorney was Daniel J. Albregts, Esq. ( See id. ) On March 23, 2011, the state district court denied Petitioner's petition for writ of habeas corpus on the merits. ( See Exh. 43.) On April 18, 2011, Petitioner, through counsel, filed a notice of appeal to the Nevada Supreme Court. (Exh. 46.)
On June 14, 2011, Albregts wrote Petitioner a letter and included his motion to withdraw as counsel from the appeal. (Exh. 88.) Albregts wrote Petitioner the following:
I have filed the docketing statement for the criminal appeal and am obtaining a transcript from the hearing. However, if the court grants my motion to withdraw you will be required to complete the opening brief and the rest of your appeal on your own. Once the motion is granted I will forward you the file so that you have all of the pleadings and briefs which will provide you the necessary facts and case law to file the opening brief. I will also provide a format for the brief so that you can use that format in completing your brief.
Finally, if the Nevada Supreme Court denies your appeal you should contact the Federal Public Defender's Office Habeas Unit...
I will notify you once I hear from the Supreme Court regarding my motion.
( Id. )
On June 24, 2011, the Nevada Supreme Court issued an order granting Albregts' motion to withdraw as counsel of record on appeal. (Exh. 50.) The order stated that Albregts "represents that he was retained to represent appellant in the post-conviction proceedings in district court, was not retained to handle an appeal, and has been unable to reach an agreement with appellant regarding a retainer for an appeal." ( Id. ) The Nevada Supreme Court held that this was an "adequate cause for counsel to withdraw in [the] matter" and ordered the clerk of the court to withdraw Daniel J. Albregts as counsel of record for appellant. ( Id. )
On March 9, 2012, Albregts wrote Petitioner another letter and informed Petitioner that the Nevada Supreme Court had granted his motion to withdraw. (Exh. 89.) Albregts wrote Petitioner the following:
I am enclosing an Order the Supreme Court filed on June 24, 2011 granting my Motion to Withdraw from your case and indicating that if you did not retain new counsel within sixty (60) days of their Order they would decide the appeal based upon the record. Given that the sixty (60) days has passed I suspect that the court is reviewing the record to determine whether or not there are any appellate issues.
It probably would be best at this stage to simply let the Supreme Court rule one way or another. If they grant your appeal then you can decide how to proceed according to their decision. If they deny your appeal you can simply proceed to filing your federal writ. You have one year from the date of the Supreme Court's decision within which to file your writ. You can then contact the Federal Defender's Office and ask that they be ...