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Dean v. Neven

United States District Court, D. Nevada

March 10, 2015

GLENN DARNELL DEAN, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

ORDER

JAMES C. MAHAN, District Judge.

Before the court are the first amended petition for writ of habeas corpus (#12), respondents' answer (#37), and petitioner's reply (#40). The court finds that relief is not warranted, and the court denies the first amended petition.

After a jury trial, petitioner was convicted in state district court of one count each of conspiracy to commit kidnaping, first-degree kidnaping with the use of a deadly weapon, and robbery with the use of a deadly weapon. Ex. 12 (#13). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 23 (#14).

Petitioner then filed his first post-conviction habeas corpus petition in state district court. Ex. 26 (#14). The state district court denied the petition. Ex. 67 (#15). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 70 (#15).

Petitioner then filed in state district court a motion that he was actually innocent of the kidnaping charge. Ex. 77 (#16). The state district court denied the motion. Ex. 83 (#16).

While the actual-innocence motion was pending, petitioner filed his second post-conviction habeas corpus petition in state district court. Ex. 79 (#16). The state district court dismissed the petition because it was untimely and successive. Ex. 88 (#16). See also Nev. Rev. Stat. §§ 34.726(1), 34.810. Petitioner appealed, and the Nevada Supreme Court affirmed for the same reasons. Ex. 123 (#31).

Petitioner filed in state district court a motion seeking to hold the prosecutor and the defense counsel in contempt. Ex. 118 (#16). The state district court denied the motion. Ex. 93 (#16). Petitioner appealed, and the Nevada Supreme Court affirmed the dismissal. Ex. 100 (#16).

Petitioner filed in state district court a motion for modification of his sentence. Ex. 97. The state district court denied the motion. Ex. 101 (#16). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 126 (#31).

While some of the state-court proceedings were continuing, petitioner commenced this action. The court appointed counsel, who filed the first amended petition (#12). Respondents moved to dismiss, arguing that petitioner had not exhausted all his grounds for relief. The court found that ground 2(A), ground 3, and ground 1 to the extent it challenged the sufficiency of the evidence for the counts of conspiracy to commit kidnaping and robbery with the use of a deadly weapon, were not exhausted. Order (#33). Petitioner elected to dismiss the unexhausted grounds. The answer (#37) and the reply (#40) followed.

Reasonable jurist would not find the court's conclusions regarding the exhaustion of ground 2(A), ground 3, and part of ground 1 to be debatable or wrong, and the court will not issue a certificate of appealability on these issues.

Congress has limited the circumstances in which a federal court can grant relief to a petitioner who is in custody pursuant to a judgment of conviction of a state court.

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). "By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131 S.Ct. 770, 784 (2011).

Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000); or that it "involved an unreasonable application of" such law, § 2254(d)(1); or that it "was based on an ...

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