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Thomas v. Palmer

United States District Court, D. Nevada

November 20, 2014

DANIEL WILLIAM THOMAS, Petitioner,
v.
JACK PALMER, et al., Respondents

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.

ORDER

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.[1] 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, ยง 2254(d)(1); or that it " was based on an unreasonable ...

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