United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the Court on its sua sponte inquiry into whether the petition should be dismissed without prejudice as wholly unexhausted. This order follows upon a prior show-cause order (#3) and petitioner's response thereto, which he presents as a motion (#5) to show cause.
The papers presented together with the online docket records of the state courts reflect the following procedural history.
Petitioner George Vontress challenges his Nevada state conviction, pursuant to a jury verdict, of robbery with a deadly weapon, burglary while in possession of a firearm, battery with the intent to commit a crime (robbery), and battery with the use of a deadly weapon. Vontress represented himself at trial.
The judgment of conviction was filed on June 15, 2012, and the time for filing a direct appeal expired on July 16, 2012. Petitioner filed, inter alia, an appeal on November 1, 2012. The state supreme court ultimately held, following appointment of counsel, that the appeal was untimely and dismissed for lack of jurisdiction. The court dismissed the appeal in a March 13, 2014, order in No. 2057 in that court, and the remittitur issued on May 19, 2014.
Meanwhile, petitioner filed a motion to vacate judgment in the state district court on February 1, 2013. It does not appear that the motion has been adjudicated by the state district court as yet, with the court previously having taken all pending matters off calendar during the pendency of the untimely appeal.
Petitioner also filed a state post-conviction petition on March 27, 2013. The state district court denied the petition. The state court clerk gave notice of entry of the court's findings of fact, conclusions of law, and order on August 4, 2014.
On or about August 12, 2014, petitioner mailed the federal petition in this action to the Clerk. The petition was filed on August 18, 2014, and entered on August 19, 2014.
When this Court screened the petition, the state district court online docket did not reflect that petitioner had appealed the denial of his state petition. Petitioner confirmed in his responses to the exhaustion inquiries in the federal petition that he had not. He stated that he had not appealed the dismissal because "[t]he Nevada Supreme Court is part of the conspiracy and in collusion with state officials."
By an order filed and entered on August 20, 2014, the day after the petition was entered on the docket, the Court directed petitioner to show cause why the petition should not be dismissed as completely unexhausted. The Court expressly cautioned petitioner regarding the potential consequences of not filing a timely appeal to the Supreme Court of Nevada from the denial of state post-conviction relief. The Court stated:
Petitioner at all times remains responsible for timely presenting a federal petition with exhausted claims. If petitioner has failed to exhaust any claims, then his petition will be dismissed for lack of exhaustion. If he later exhausts claims but does so only after the federal limitation period has expired, the later federal petition then will be dismissed with prejudice as untimely. The Court can assure petitioner that the chances of his bypassing the exhaustion requirement on an allegation that "[t]he Nevada Supreme Court is part of the conspiracy and in collusion with state officials" are virtually nil. If petitioner allows the currently running appeal time to expire in the state courts, petitioner virtually certainly will have created a situation where: (a) he cannot pursue federal habeas relief because he has no exhausted claims; (b) any efforts to exhaust later will be met by state procedural bars; and (c) a later federal petition filed after exhaustion may be dismissed as untimely.
In short, petitioner is about to make a very, very large procedural mistake that will bar his claims from being reviewed further in either state or federal court.
It, again, is petitioner's responsibility to timely seek federal habeas relief with exhausted claims. Nothing in the Court's orders herein toll the running of the federal limitation period, which continues to run as to a later federal petition. Duncan v. Walker, 533 U.S. 167 (2001). If petitioner proceeds down the track he is attempting to pursue, the virtually certain consequence - that his claims ...