United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This represented habeas matter comes before the Court on a sua sponte inquiry as to whether the petition is time-barred because it was not filed within the one-year limitation period pursuant to 28 U.S.C. § 2244(d)(1). This order follows upon earlier show-cause orders (dkt. nos. 6 and 23) and petitioner's response (dkt. no. 33) through counsel.
Petitioner Robert Charles Jones ("petitioner" or "Jones") challenges his Nevada state conviction for the first-degree murder of Rayfield Brown on September 29, 1978. The State presented evidence at trial that, following a barroom argument between Jones and Brown, Jones walked out of the bar, returned with a handgun, pointed it to Brown's head, and shot him. See Jones v. State, 101 Nev. 573, 575, 707 P.2d 1128, 1129 (1985).
The case was pursued by the State as a capital murder case. After a first trial ended in a mistrial, petitioner was convicted of first-degree murder in a second trial and sentenced to death pursuant to the jury's penalty phase verdict. The Supreme Court of Nevada affirmed the conviction on direct appeal but vacated the death sentence and remanded for a new penalty phase proceeding. Jones, supra .
On remand, the State and Jones stipulated to a sentence of life without parole. The judgment of conviction was filed on April 10, 1987 (dkt. no. 33, Exh. 50).
On April 14, 1988, petitioner filed a state post-conviction petition. Exh. 52. An inmate housed at Nevada State Prison ("NSP") with Jones prepared the petition. Exh. 53. The state district court denied the petition on the merits on May 25, 1988. Exh. 56. Petitioner did not appeal the denial.
On or about April 22, 1997, petitioner mailed a federal petition to the Clerk of this Court for filing, which was prepared by inmate Michael J. Zellis and docketed under Case No. 2:97-cv-00600-JBR-RJJ. Exh. 60. The Court denied petitioner's motion for counsel. Exh. 64. As discussed further, infra, the Court ultimately dismissed the action on the basis that the pleadings before the Court presented only unexhausted claims. Exhs. 83, 86. Petitioner's motion for reconsideration, apparently prepared by inmate James Adams, was denied on February 9, 1999. Exh. 89. Petitioner did not appeal the dismissal.
On November 28, 2000, petitioner filed a second state post-conviction petition, which was apparently prepared by James Adams. Exhs. 92, 93. Petitioner filed a motion for appointment of counsel, prepared by inmate "para-legal" J. Benjamin Odoms, which the state court denied. Exhs. 96, 98. On January 30, 2001, petitioner filed, inter alia, a motion to withdraw guilty plea. The state district court denied relief, and the Supreme Court of Nevada affirmed in consolidated appeals. The Nevada Supreme Court held that the second petition was untimely. The court held that the claims in the motion to withdraw guilty plea were not cognizable given that (a) petitioner had been convicted by a jury and (b) fell outside the scope of claims cognizable on such a motion to the extent that petitioner challenged his sentence. Exh. 125. The remittitur issued on December 18, 2001. Exh. 126.
On February 6, 2008, petitioner, in proper person, filed a motion to withdraw guilty plea to correct manifest injustice as well as a motion to correct illegal sentence. Exhs. 132, 133. Inmate Eric Douglas prepared both. The state district court denied the motions and ultimately denied petitioner's motions for reconsideration. Exhs. 145, 136, 137. The Nevada Supreme Court affirmed in consolidated appeals on September 25, 2008, and remittiturs issued on October 21, 2008. Exhs. 148, 150.
On October 20, 2008, petitioner filed his petition for writ of habeas corpus of actual innocence pursuant to NRS §§ 34.360 to 34.830 inclusive in the Nevada Supreme Court, which J. Benjamin Odoms prepared. Exh. 147. The Nevada Supreme Court denied relief on November 6, 2008, and a Notice in Lieu of Remittitur issued on December 2, 2008. Exhs. 152, 153.
On December 26, 2008, petitioner filed a motion for correction of sentence, which the state district court ultimately denied. Exhs. 154, 156.
On December 8, 2008, petitioner mailed his third proper person state postconviction petition to the First Judicial District Court. Exh. 157. It was filed in the Eighth Judicial District Court on March 6, 2009. The state district court denied the petition on April 28, 2010, and the Nevada Supreme Court affirmed on September 29, 2010. Exhs. 167, 174. Remittitur issued on October 27, 2010. Exh. 175.
On August 10, 2010, petitioner filed his fourth state postconviction petition. Exhs. 170, 171. The state district court dismissed the petition. Exh. 177. The Nevada Supreme Court affirmed on June 8, ...