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Merritt v. Neven

United States District Court, D. Nevada

February 20, 2015

WILLIAM C. MERRITT, Petitioner,
v.
D. NEVEN, et al., Respondents.

ORDER [8, 26]

JENNIFER DORSEY, District Judge.

This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. ยง 2254 by a Nevada state prisoner. Before the Court is respondents' motion to dismiss (Doc. 8) and petitioner's motion for a stay (doc. 26).

I. Procedural History

On May 16, 2008, in the Eighth Judicial District for the State of Nevada, petitioner was charged by information with the following: first-degree kidnapping (count 1), three counts of sexual assault (counts 2 through 4), five counts of sexual assault with the use of a deadly weapon (counts 5 through 9), battery with intent to commit a crime (count 10), and possession of a firearm by an exfelon (count 11). (Exhibit 14).[1] A jury trial was held from August 7, 2008, through August 20, 2008. (Exhibits 29-50). The jury found petitioner guilty of one count of second-degree kidnapping, one count of sexual assault, one count of battery, and one count of possession of a firearm by an exfelon. (Exhibit 50). On December 18, 2008, the state district court entered a judgment of conviction reflecting that petitioner was adjudicated a habitual criminal and sentenced, inter alia, to two consecutive terms of life imprisonment with a possibility of parole after 120 months. (Exhibit 60). Petitioner appealed from the judgment of conviction. (Exhibit 61). In his opening brief filed May 26, 2009, petitioner challenged the trial court's decisions to: (1) deny this motion to suppress physical evidence; (2) deny his motion for a new trial; (3) deny his proffered jury instructions; and

(4) deny his motion to strike the habitual criminal enhancement. (Exhibit 74). On March 11, 2010, the Nevada Supreme Court affirmed the convictions. (Exhibit 77). Remittitur issued on April 7, 2010. (Exhibit 79).

On April 5, 2011, petitioner filed a pro se post-conviction habeas petition in the state district court. (Exhibit 83). On January 10, 2012, through his counsel, petitioner filed a supplemental postconviction petition in the state district court. (Exhibit 86). By order filed June 7, 2012, the state district court denied the state habeas petition and supplemental petition. (Exhibit 94). Petitioner appealed from the denial of his state habeas petition. (Exhibit 96). In the opening brief, filed December 6, 2012, petitioner asserted that trial counsel was ineffective for failing to present exculpatory evidence in his possession during the jury trial. (Exhibit 111). Petitioner asserted that appellate counsel was ineffective on direct appeal for: (1) failing to challenge the sufficiency of the evidence as to the sexual assault conviction; and (2) failing to provide the Nevada Supreme Court with a sentencing transcript. ( Id. ). Petitioner challenged the state district court's decision to deny the petition without holding an evidentiary hearing. ( Id. ). By order filed September 18, 2013, the Nevada Supreme Court affirmed the denial of the state habeas petition. (Exhibit 119). Remittitur issued on October 15, 2013. (Exhibit 121).

Petitioner dispatched (gave to prison officials for mailing) his federal habeas petition on December 11, 2013. (Doc. 1; Doc 25, at Exhibit A). The petition contains three grounds for relief. (Doc. 1). Respondents filed the instant motion to dismiss the petition on July 8, 2014. (Doc. 8). Petitioner filed a motion for an extension in which to file a response to the pending motion to dismiss. (Doc. 15). On July 22, 2014, the Court granted petitioner an extension until August 31, 2014, to file his response to the motion to dismiss. (Doc. 16). On August 26, 2014, petitioner sought a second extension to his response deadline. (Doc. 17). On August 27, 2014, the court granted petitioner an additional 90-day extension, making his response due November 24, 2014. (Doc. 19). On November 26, 2014, petitioner filed a motion for a third extension. (Doc. 22). By order filed December 19, 2014, this court granted petitioner a final 45-day extension of time to in which to file a response to the motion to dismiss. (Doc. 23). On February 2, 2015, petitioner filed a document entitled "answer to motion to dismiss petition for writ of habeas corpus, " which the court construes as petitioner's opposition to the motion to dismiss. (Doc. 25). Also on February 2, 2015, petitioner filed a motion for a stay pending his appeal of an order denying the appointment of counsel. (Doc. 26). On February 12, 2015, respondents filed an opposition to petitioner's motion for a stay and a reply to petitioner's opposition to the motion to dismiss. (Docs. 30 & 32). The court now considers respondents' motion to dismiss and petitioner's motion for a stay.

II. Discussion

A. Petitioner's Motion for a Stay Pending Appeal

In the motion filed February 2, 2015, petitioner seeks a stay of this action pending his appeal of this court's denial of his motion for counsel and motion for reconsideration of the order denying counsel. (Doc. 26). A notice of appeal of a non-appealable order is a nullity and does not transfer jurisdiction to the Court of Appeals. Estate of Connors v. O'Connor, 6 F.3d 656, 659 (9th Cir. 1993). Petitioner's motion for a stay pending appeal is therefore denied.

B. Respondents' Motion to Dismiss

1. Untimeliness Argument Withdrawn

In the motion to dismiss, respondents argue that the petition is untimely by one week and that grounds of the petition are unexhausted. (Doc. 8). Although the face of the petition does not indicate when the petition was dispatched (given to prison officials for mailing), the petition was signed on December 11, 2013. (Doc. 1 at pp. 1 and 9). Petitioner's opposition and attached Exhibit A show that he dispatched his petition for mailing to this court on December 11, 2013. (Doc. 25 at Exhibit A). Pursuant to the "mailbox rule, " federal courts deem the filing date of a document as the date that it was given to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988). Therefore, this court deems petitioner's federal petition to be filed on December 11, 2013. In ...


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