United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This habeas matter comes before the Court on petitioner's motion to reopen the case following a stay (dkt. no. 18), three motions for appointment of counsel (dkt. nos. 19, 30 and 40), three motions for leave to amend (dkt. nos. 24, 26 and 28), a motion to expand argument on grounds (dkt. no. 34), a motion for leave to file a second request to stay (dkt. no. 37), and a motion for reconsideration for second stay (dkt. no. 43).
Petitioner James Wheaton seeks to challenge his Nevada state conviction, pursuant to a guilty plea, of three counts of sexual assault of a minor under fourteen years of age and three counts of lewdness with a minor under fourteen.
The Court notes the dates of various charges with regard to petitioner's allegations of actual innocence in connection with the currently pending motions. Petitioner suggests both that he is actually innocent and that the state courts lacked jurisdiction to convict because he was stationed with the Air Force in England allegedly at the relevant time.
Prior to his plea, Wheaton was charged with eighteen counts of sexual assault of a minor under fourteen and thirteen counts of lewdness of a minor under fourteen, as to four different victims. The thirty-one charges pertained to specified date ranges that - in the aggregate - covered a period from on or between January 1, 2002, through April 7, 2004.
The fact that Wheaton had been stationed in England at some point prior to being in Nevada was known prior to petitioner's plea. The State filed a motion prior to the plea seeking to admit evidence of prior conduct. The motion summarized at length evidence that the State believed that it would be able to prove at trial. The State maintained that the alleged child sexual abuse in the charges had occurred during the, approximately, year-and-a-half that the family had lived in Nevada prior to the April 2004 report and arrest. The State sought to admit prior act evidence of alleged longstanding sexual abuse of Wheaton's daughters when the family previously lived in other jurisdictions, including North Carolina and England.
According to the State's presentation, one of the victims was a friend of Wheaton's daughters. The charges as to this victim were alleged to have occurred in a time frame of on or between February 1, 2004, and April 7, 2004. Wheaton's alleged abuse of this victim - a friend of the daughters in Nevada - was alleged to have occurred exclusively in Nevada, with no prior other acts history in other jurisdictions as to this victim.
The sexual assault charges and lewdness charges to which Wheaton pled guilty pertained to dates from on or between January 1, 2002, and May 23, 2002, as to one victim; January 1, 2002, and April 7, 2004, as to a second victim; February 1, 2004, and April 7, 2004, as to a third victim (the daughters' friend); and January 1, 2002, and April 7, 2004, as to a fourth victim.
At his sentencing, Wheaton stated, inter alia, that he was "very sorry for what I did" and that he was "deeply remorseful." (Dkt. no. 8-1, Exh. 6, at 4 (electronic docketing page 88).)
The judgment of conviction was filed on December 8, 2004, and petitioner did not file a direct appeal. The time to do so expired on January 7, 2005.
More than five (5) years later, on April 1, 2010, petitioner filed a state postconviction petition. The state supreme court affirmed the dismissal of the petition as, inter alia, untimely on May 10, 2012. Petitioner argued, through counsel, inter alia, that he was out of the country during the charged time period for two of the six offenses to which he pled guilty. The state supreme court rejected this argument because petitioner had failed to demonstrate that the evidence in question was new evidence and because he had failed to demonstrate actual innocence of the twenty-five other charges that were dismissed as part of the plea deal. The remittitur issued on June 6, 2012.
Petitioner mailed the present federal action for filing on or about June 7, 2012. The action thereafter was stayed on an unopposed motion for a stay.
The state supreme court subsequently affirmed the dismissal of petitioner's second state petition as, inter alia, untimely. The court declined to revisit petitioner's claim of actual innocence on the basis that the decision ...