United States District Court, D. Nevada
NYUTU K. WOODS, Petitioner,
STATE OF NEVADA, et al., Respondents.
RICHARD F. BOULWARE, II, District Judge.
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner. Before the Court is respondents' motion to dismiss. ECF No. 13.
I. Procedural History
On May 3, 2001, in Clark County, Nevada, Petitioner was charged in a criminal complaint with sexual assault on a minor under the age of 14. Exhibit 3. Petitioner unconditionally waived his preliminary hearing. Exhibit 5. On September 5, 2001, in the Eighth Judicial District Court for the State of Nevada, Petitioner was charged by information with sexual assault on a minor under 14 years of age. Exhibit 10.
On April 18, 2002, the State filed an amended information charging Petitioner with sexual assault on a minor under the age of 16 years and lewdness with a child under the age of 14 years. Exhibit 13. Petitioner executed a guilty plea agreement in which he agreed to plead guilty, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970),  to sexual assault on a minor under the age of 16 years ("Count I"), and lewdness with a child under the age of 14 years ("Count II"). (Exhibit 14). The State retained the right to argue at sentencing and the parties stipulated that on Count I, Petitioner would be sentenced to 20 years with parole eligibility beginning after 5 years had been served, and on Count II, Petitioner would be sentenced to 20 years with parole eligibility beginning after 3 years had been served. Id . The parties stipulated that Count II would run consecutive to Count I. Id . In open court, on April 18, 2002, Petitioner pled guilty to sexual assault on a minor under the age of 16 years (Count I) and lewdness with a child under the age of 14 years (Count II); the state district court accepted Petitioner's plea. Exhibit 15.
Petitioner filed a motion to withdraw his attorney of record and a motion to appoint new counsel to pursue a possible withdrawal of plea. Exhibit 16. The state district court granted the motion to appoint new counsel. Exhibit 17 at 3-4. The state district court appointed Petitioner new counsel. Exhibit 19. In seeking to withdraw his plea, Petitioner argued that he had not known of the DNA test results at the time of the plea-the test results did not show the presence of Petitioner's sperm from the victim's rape kit. Exhibit 22 at 3-4. At a hearing on July 25, 2002, the state district court denied Petitioner's motion to withdraw his guilty plea. Exhibit 22.
In a sentencing hearing on August 29, 2002, the state district court sentenced Petitioner to a term of 60-240 months on Count I and a consecutive term of 36-240 months on Count II. Exhibit 23. A judgment of conviction, reflecting the two convictions and the district court's sentences, was filed on September 6, 2002. Exhibit 24.
Petitioner appealed from his judgment of conviction. Exhibit 25. On January 28, 2003, the Nevada Supreme Court affirmed the conviction. Exhibit 37. Remittitur issued on February 25, 2003. Exhibit 39.
On December 11, 2003, Petitioner filed, through counsel, a post-conviction habeas corpus petition in the state district court. Exhibit 44. The State opposed the petition. The state district court scheduled an evidentiary hearing for April 29, 2004. Exhibit 9 at 12; Exhibit 63 at 2. On April 29, 2004, Petitioner, through his counsel, withdrew his post-conviction habeas petition. Id . In withdrawing the state petition, Petitioner's counsel informed the state district court that Petitioner had admitted to him that he knew of the DNA results prior to the time he entered his guilty plea. Id.
On April 17, 2006, Petitioner, acting in pro per, filed a second post-conviction habeas petition in the state district court. Exhibit 50. The State opposed and moved to dismiss the petition. Exhibit 53. On June 22, 2006, the state district court denied the petition as untimely pursuant to NRS 34.726. Exhibit 54. Petitioner appealed, and on October 23, 2006, the Nevada Supreme Court affirmed the state district court's denial of the petition as untimely. Exhibit 63. The Nevada Supreme Court ruled, on separate and independent grounds, that Petitioner's claims lacked merit. Exhibit 63 at 3-4. Remittitur issued on November 17, 2006. Exhibit 66.
By order filed May 11, 2011, the Nevada Supreme Court dismissed two appeals that were based on notices of appeal filed by Petitioner in pro per, in the Eighth Judicial District Court. The Nevada Supreme Court's order of dismissal indicated that Petitioner did not challenge an appealable order. Exhibit 95. Remittitur issued on August 10, 2011. Exhibit 117.
On May 26, 2011, Petitioner filed a notice of appeal, stating that he wanted to "appeal motion to overturn my conviction." Exhibit 98. On August 5, 2011, the Nevada Supreme Court dismissed Petitioner's appeal because Petitioner attempted to appeal where there was no appealable order. Exhibit 114. Remittitur issued on August 30, 2011. Exhibit 118.
On November 7, 2011, Petitioner filed a motion to appoint counsel in his criminal case. Exhibit 123. On December 14, 2011, the state district court denied Petitioner's motion to appoint counsel. Exhibit 125. On January 18, 2012, Petitioner filed a notice of appeal from the state district court's order denying his motion to appoint counsel. Exhibit 129. On February 27, 2012, the Nevada Supreme Court dismissed the appeal for lack of jurisdiction. Exhibit 134. Remittitur issued on March 23, 2012. Exhibit 138.
On June 11, 2012, Petitioner filed a motion to modify or correct an illegal sentence in which he claimed that he was actually innocent, his counsel was ineffective, and his guilty plea was invalid. Exhibit 144. On July 12, 2012, Petitioner filed a notice of appeal regarding his motion to modify or correct an illegal sentence. Exhibit 147. The state district court's order denying the motion to modify or correct an illegal sentence was subsequently filed on July 17, 2012. Exhibit 153. On ...