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Thomas v. Baca

United States District Court, D. Nevada

February 4, 2015

EDDIE JAMES THOMAS, JR., Petitioner,
v.
ISIDRO BACA, et al., Respondents.

ORDER

MIRANDA M. DU, District Judge.

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. Before the Court is respondents' motion to dismiss the petition (dkt. no. 31). Petitioner has opposed the motion (dkt. no. 36) and filed supplemental exhibits (dkt. no. 38). Respondents replied (dkt. no. 39) and filed supplemental exhibits (dkt. no. 40), an errata to the motion to dismiss (dkt. no. 41), and a supplement to the errata (dkt. no. 42).

I. PROCEDURAL HISTORY AND BACKGROUND

On May 1, 2007, pursuant to a jury verdict, petitioner was found guilty of counts 1-5 "statutory sexual seduction. He was sentenced as a habitual criminal to serve counts 1-3 concurrently for a term of 96 to 240 months and to serve counts 4-5 concurrently for a term of 96-240 months, but consecutive to counts 1-3 (exhibits to first amended petition, dkt. no. 20, Pet. Exh. 23).[1]

Petitioner appealed his conviction, which the Nevada Supreme Court affirmed on December 10, 2007. (Pet. Exhs. 24, 27, 29.) Remittitur issued on January 4, 2008. (Pet. Exh. 30.)

On July 24, 2007, while his direct appeal was pending, petitioner filed a state postconviction habeas petition. (Pet. Exh. 26.) The state district court denied the petition without prejudice, and the Nevada Supreme Court dismissed the appeal for lack of jurisdiction. (Resps. Exh. C.)

On February 21, 2008, petitioner filed a second state postconviction petition, in proper person. (Pet. Exh. 32.) On May 13, 2009, the Nevada Supreme Court affirmed the district court's denial of the petition. (Pet. Exh. 45.) The Nevada Supreme Court denied rehearing on June 23, 2009, and remittitur issued on July 21, 2009. (Pet. Exhs. 46, 47, 48.)

On August 5, 2009, petitioner dispatched his first federal habeas petition (3:09cv-00455-HDM-WGC) ("2009 Petition"). Ultimately, on December 15, 2011, the Court granted respondents' motion to dismiss, dismissing the 2009 Petition based on procedural default and failure to exhaust. ( Id. at dkt. no. 37.) Petitioner did not appeal.

In the meantime, on December 11, 2009, petitioner, in proper person, filed a motion to correct illegal sentence with the state district court. (Pet. Exh. 57.) The state court denied the motion, initially on March 2, 2010, and on reconsideration, on April 16, 2010. (Pet. Exhs. 60, 63.)

On August 12, 2009, petitioner, in proper person, filed a third state postconviction petition. (Pet. Exh. 50.) On October 22, 2009, that state district court held a hearing and stated for the record that petitioner had sent a letter to the Court indicating that what he sent the state court was "just a courtesy copy" of his first federal petition. (Pet. Exh. 56 at 3.) The petition was thus taken off the state district court's calendar.

On February 21, 2012, petitioner filed a fourth state postconviction petition. The Nevada Supreme Court affirmed the denial of the petition on January 16, 2013, and remittitur issued on February 12, 2013. (Pet. Exhs. 73, 74.)

On January 24, 2013, petitioner dispatched his federal petition in the instant case. (Dkt. no. 6.) Through appointed counsel, petitioner filed an amended petition on February 3, 2014. (Dkt. no. 20.) The amended petition raises five grounds for relief. Id. Respondents argue that the petition should be dismissed as untimely (dkt. no. 31).

II. DISCUSSION

A. AEDPA Statute of ...


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