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Banuelos v. Smith

United States District Court, D. Nevada

September 15, 2014

ENRIQUE BANUELOS, Petitioner,
v.
GREG SMITH, et al., Respondents.

ORDER

MIRANDA M. DU, District Judge.

This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. ยง 2254, by a Nevada state prisoner represented by counsel. Before the Court is respondents' motion to dismiss the second amended petition. (Dkt. no. 35.)

I. PROCEDURAL HISTORY

Petitioner was charged with murder with the use of a deadly weapon. (Exh. 5.)[1] On May 17, 2007, at his arraignment, petitioner entered a plea of not guilty to the charge. (Exh. 6.) On December 4, 2007, pursuant to negotiations, the State filed an amended information charging petitioner with murder in the first degree. (Exh. 8.) The State dropped the use of a deadly weapon enhancement. ( Id. ) On December 4, 2007, a guilty plea memorandum was filed. (Exh. 9.) On December 4, 2007, petitioner pled guilty, pursuant to negotiations, to first-degree murder. (Exh. 10.) On March 7, 2008, petitioner's counsel filed a statement in mitigation. (Exh. 11.) Petitioner was sentenced to life in prison with the possibility of parole after 20 years served. (Exhs. 12 & 13.)

Petitioner did not pursue a direct appeal. On September 4, 2009, petitioner filed a post-conviction habeas petition in state district court. (Exh.19.) Petitioner was appointed counsel for his post-conviction proceedings. (Exh. 22.) On April 1, 2010, petitioner's post-conviction counsel filed a supplemental petition. (Exh. 23.) The State moved to dismiss the petition. (Exh. 24.) Petitioner opposed the motion. (Exh. 25.) By order filed July 14, 2010, the state district court dismissed the petition as untimely. (Exh. 27.) Petitioner appealed from the denial of his state post-conviction habeas petition. (Exh. 28.) On September 15, 2011, the Nevada Supreme Court affirmed the denial of the post-conviction habeas petition. (Exh. 32.) Remittitur issued on October 12, 2011. (Exh. 33.)

Petitioner dispatched his federal habeas petition to the Court on December 12, 2011. (Dkt. no. 1.) On November 26, 2012, petitioner filed an amended petition. (Dkt. no. 16.) By order January 28, 2013, the Court granted petitioner's motion for the appointment of counsel. (Dkt. no. 19.) The Federal Public Defender entered a notice of appearance for petitioner on February 27, 2013. (Dkt. no. 20.) On October 3, 2013, petitioner filed a second amended petition. (Dkt. no. 29.) Respondents have filed a motion to dismiss the second amended petition. (Dkt. no. 35.) Petitioner has filed an opposition to the motion. (Dkt. no. 42.) Respondents filed a reply. (Dkt. no. 47.)

II. DISCUSSION

A. Arguments Regarding Untimeliness and Equitable Tolling

Respondents argue that the petition is untimely. The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the statutes controlling federal habeas corpus practice to include a one-year statute of limitations on the filing of federal habeas corpus petitions. With respect to the statute of limitations, the habeas corpus statute provides:

(d)(1) 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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