United States District Court, D. Nevada
DAVID L. GRAY, Petitioner,
RENEE BAKER, 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 petitioner David L. Gray, a Nevada state prisoner. Before the Court is respondents' motion to dismiss the petition. ECF No. 9.
I. PROCEDURAL HISTORY
On September 8, 2008, in the Eighth Judicial District for the State of Nevada, the State filed an information charging petitioner with conspiracy to commit burglary, burglary, conspiracy to commit robbery, and two counts of robbery. Exhibit 2. On November 5, 2008, at calendar call, the jury trial was vacated and the matter was set for a status check. Exhibit 3. On November 26, 2003, the State filed an amended information which charged petitioner with robbery and conspiracy to commit robbery. Exhibit 4. The same day, a guilty plea agreement was filed. Exhibit 5.
On April 13, 2009, petitioner informed the state district court that he wished to withdraw his plea and requested that counsel be appointed for the limited purpose of determining if there was a basis to withdraw his plea. Exhibit 7. The court appointed Cynthia Dustin, who was confirmed as petitioner's attorney on April 15, 2009. Exhibit 8. On May 15, 2009, petitioner filed a motion to withdraw his guilty plea, which the state opposed. Exhibits 9, 10. On July 8, 2009, the state district court denied the motion to withdraw the guilty plea and sentenced petitioner. Exhibit 11. Petitioner was sentenced to a prison term of 48-120 months for robbery and a concurrent prison term of 12-48 months for conspiracy to commit robbery. The court suspended both prison sentences and placed petitioner on probation for 5 years. Exhibits 11, 12. Petitioner's sentence was reflected in his judgment of conviction, filed September 1, 2009. Exhibit 12.
On September 14, 2009, petitioner was brought before the state district court on a probation violation. The court found that petitioner had violated probation, but did not revoke his probation. Instead, the court modified his probation conditions to add 120 days of "flat time" in jail and house arrest upon completion of jail time. Exhibits 13, 14. The state district court filed an amended judgment of conviction on October 22, 2009. Exhibit 14.
Petitioner filed a motion to modify his probation to remove the house arrest component. Exhibit 16. The state district court granted petitioner's motion to modify probation and, on September 3, 2010, entered a second amended judgment of conviction. Exhibit 17.
Petitioner was again brought before the state district court on January 12, 2011, on a probation violation. Exhibit 18. The court revoked petitioner's probation and, on January 20, 2011, entered a third amended judgment of conviction with imposed the original prison sentences. Exhibit 19.
On February 2, 2011, petitioner filed a pro se motion to dismiss his counsel, Cynthia Dustin, on the grounds that she failed to answer his calls, did not communicate with him or visit him, and was not going a good job representing him. Exhibit 20. By order filed February 17, 2011, the state district court denied petitioner's motion. Exhibit 21.
On February 25, 2011, petitioner filed a pro se motion to modify sentence in which he claimed that he should have been convicted of grand larceny and burglary. Exhibit 22. The State opposed petitioner's motion. Exhibit 23. On April 1, 2011, the state district court denied petitioner's motion to modify his sentence. Exhibit 24. On August 5, 2011, petitioner filed a pro se motion to hold counsel in contempt of court, which the state district court denied. Exhibits 25, 26.
Petitioner filed a post-conviction habeas petition in the state district court on November 4, 2011. Exhibit 27. Petitioner alleged two grounds for relief: (1) that he was denied the effective assistance of counsel on or about August of 2009 when he told his counsel to appeal the entry of his judgment of conviction but she failed to do so; and (2) that in November of 2008 when he pled guilty, he didn't want to plead to robbery or conspiracy to commit robbery because he felt that was not the crime he committed and his prior counsel, Michael Sanft, and District Attorney Krista Barrie lied to the court about the factual basis for the plea. Id. at 7-10. The State filed a response and motion to dismiss on grounds that the petition was time-barred but agreed that petitioner was entitled to an evidentiary hearing regarding counsel's alleged failure to file an appeal. Exhibit 28. Petitioner filed an opposition to the motion to dismiss the petition. Exhibit 29.
On February 3, 2012, the state district court held an evidentiary hearing on the habeas petition. Exhibit 30. In a written order filed March 20, 2012, the state district court ruled that the post-conviction habeas petition was untimely. Exhibit 32. The state district court's order went on to find that petitioner's claim of ineffective assistance of counsel-specifically, petitioner's contention that he asked his attorney to file an appeal but she did not-was belied by the record, based on testimony given at the evidentiary hearing. Id . Petitioner filed a notice of appeal from the denial of his post-conviction habeas petition. Exhibits 31, 33.
On July 26, 2012, petitioner filed a motion to modify and/or correct an illegal sentence. Exhibit 34. The state district court heard the motion on September 5, 2012, and entered its order denying the motion on October 9, 2012. Exhibit 39. Petitioner filed a notice of appeal from the district court's denial of his motion to modify and/or correct an illegal sentence. Exhibit 37.
On October 5, 2012, while the appeal from the denial of petitioner's motion to modify and/or correct an illegal sentence was pending, petitioner filed a motion to reconsider the revocation of his probation. Exhibit 38. The state district court denied the motion on the grounds that it lacked jurisdiction while the ...