United States District Court, D. Nevada
Daniel William Thomas, Petitioner, Pro se, Carson City, NV.
For Jack Palmer, Warden, Nevada Attorney General, Respondents: Daniel M. Roche, LEAD ATTORNEY, Nevada Attorney General's Office, Carson City, NV.
LARRY R. HICKS, UNITED STATES DISTRICT JUDGE.
Before the court are the first amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (#28), respondents' answer (#41), and petitioner's reply (#42). The court finds that relief is not warranted, and the court denies the petition.
After a jury trial in the Fifth Judicial District Court of the State of Nevada, Mineral County, petitioner was convicted of two counts of lewdness with a child under the age of 14 years. Ex. 36 (#12). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 54 (#13).
Petitioner then filed in the state district court a proper-person post-conviction habeas corpus petition. Ex. 60 (#13). The state district court appointed counsel. Ex. 62 (#13). Post-conviction counsel filed a supplement. Ex. 65A (#22). The state district court denied the petition. Ex. 70 (#13). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 88 (#14).
Petitioner then commenced this action. The court dismissed ground 14 because it alleged errors in the state post-conviction process, and such errors are not addressable in federal habeas corpus. Order (#3). Reasonable jurists would not find this conclusion to be debatable or wrong, and the court will not issue a certificate of appealability for the dismissal of ground 14.
In respondents' first motion to dismiss (#10), they argued that petitioner had not exhausted his available state-court remedies for grounds 1, 2, 5, 9, 10, and 12. See 28 U.S.C. § 2254(b). The court agreed. The court granted petitioner's motion for stay and abeyance (#18), and the court stayed this action while petitioner returned to state court to exhaust those grounds.
Petitioner filed in state court his second post-conviction habeas corpus petition. Ex. 94 (#30). That court dismissed the petition because it was untimely pursuant to Nev. Rev. Stat. § 34.726 and successive pursuant to Nev. Rev. Stat. § 34.810. The court also noted that, based upon petitioner's admission, the grounds for relief were no different than what petitioner had already presented to the state courts. Ex. 106 (#31). Petitioner appealed. The Nevada Supreme Court affirmed. It held that the petition was untimely and successive pursuant to § § 34.726 and 34.810. It also held that petitioner's claims were barred by the law of the case. Ex. 117 (#31).
This court then reopened the action upon petitioner's motion. Petitioner submitted an amended petition (#28). Other than omitting the already-dismissed ground 14, the amended petition (#28) is not significantly different from the original petition (#4).
Respondents filed a second motion to dismiss (#29), arguing that grounds 1, 2, 5, 9, 10, and 12 were procedurally defaulted. The court agreed and dismissed those grounds. Order (#40). Reasonable jurists would not find this conclusion to be debatable or wrong, and the court will not issue a certificate of appealability for the dismissal of these grounds.
The answer (#41) and the reply (#42) followed.
Congress has limited the circumstances in which a federal court can grant relief to a petitioner who is in custody pursuant to a judgment of conviction of a state court.
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). " By its terms § 2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in § § 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011).
Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision " was contrary to" federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); or that it " involved an unreasonable application of" such law, § 2254(d)(1); or that it " was based on an unreasonable ...