United States District Court, D. Nevada
ROBERT L. HUNT, District Judge.
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner represented by counsel. Pending before the Court is respondents' motion to dismiss the amended petition. (ECF No. 48).
I. Procedural History
In the Sixth Judicial District Court for the State of Nevada, County of Humboldt, petitioner and two co-defendants were charged with solicitation to commit murder, principal to attempted murder, and principle to theft. (Exhibit 6). Pursuant to negotiations with the State, petitioner waived his right to a preliminary hearing and entered into a plea agreement. (Exhibits 4 & 5). On January 17, 1996, petitioner entered pleas of guilty to the following: Count I, solicitation to commit murder; Count II, principal to attempted murder; and Count III, principal to theft. (Exhibits 7 & 8). On April 29, 1996, the state district court sentenced petitioner to ten years on Counts I and III, and twenty years on Count II, with all sentences running consecutively. (Exhibit 11). The judgment of conviction was entered on April 29, 1996. (Exhibit 13).
On June 12, 1996, petitioner filed a "notice of appeal to modify sentence." (Exhibit 16). On August 20, 1996, in Case No. 28882, the Nevada Supreme Court filed an order dismissing the appeal as untimely. (Exhibit 19).
On January 13, 1997, petitioner filed a "petition for writ of error (coram nobis)." (Exhibit 21). Petitioner claimed that his trial counsel was ineffective for failing to file a timely notice of appeal. Petitioner claimed that the court failed to advise him of his right to appeal or his right to an attorney on appeal during plea proceedings. Petitioner also claimed that the court failed to advise him of his collateral rights. On February 12, 1997, the state district court denied the petition for writ of error (coram nobis). (Exhibit 22).
On June 18, 1997, petitioner filed a notice to seek a belated direct appeal. (Exhibit 23). By order filed November 7, 1997, in Case No. 30610, the Nevada Supreme Court dismissed the appeal for lack of jurisdiction. (Exhibit 25). Remittitur issued on December 1, 1997. (Exhibit 26).
On February 11, 1998, petitioner dispatched a pro se federal habeas corpus petition to this Court and the petition was filed in Case No. CV-N-98-cv-00079-ECR-PHA. (Respondents' Exhibit 28). Petitioner raised three claims: (1) counsel was ineffective for failing to advise petitioner of his appellate rights; (2) petitioner was deprived of due process and equal protection due to the state district court's failure to find that counsel was ineffective in failing to advise him of his appellate rights; and (3) counsel was ineffective for failing to advise the court that petitioner could not afford counsel on appeal. The State filed a motion to dismiss the petition as untimely. ( Id. ). On February 12, 1999, the Magistrate Judge filed a report and recommendation finding that the petition was untimely. (Respondents' Exhibit 40). On March 12, 1999, the Edward C. Reed issued an order approving and adopting the report and recommendation. (Respondents' Exhibit 43). Judgment was entered on March 12, 1999. (Respondents' Exhibit 44). Petitioner filed a notice of appeal and request for certificate of appealability. (Respondents' Exhibits 46 & 47). This Court denied the request for a certificate of appealability. (Respondents' Exhibit 48). The Ninth Circuit Court of Appeals also denied petitioner's request for a certificate of appealability. The United States Supreme Court denied the petition for writ of certiorari. (Docket, Case No. CV-N-98-cv-00079-ECR-PHA).
On July 15, 1999, petitioner filed a motion to vacate judgment of conviction in the Sixth Judicial District Court for the State of Nevada. (Exhibit 31). On October 21, 1999, the state district court denied the motion. (Exhibit 34).
On January 7, 2000, petitioner filed a second post-conviction habeas petition and a memorandum of points and authorities in support of the petition in the state district court. (Exhibits 35 & 36). On August 30, 2000, the state district court denied the petition. (Exhibit 43). Petitioner appealed. (Exhibit 44). On February 14, 2002, in Case No. 36739, the Nevada Supreme Court affirmed the denial of post-conviction habeas petition. (Exhibit 52).
On September 11, 2008, petitioner filed a third post-conviction habeas petition in the Sixth Judicial District Court. (Exhibit 64). The State filed an answer to the petition, which included a motion to dismiss. (Exhibit 70). Petitioner filed a reply and opposition. (Exhibit 71). On June 22, 2009, the state district court granted the State's motion to dismiss, in part, and granted the petition, in part. (Exhibit 72). The state district court found the petition untimely and successive. ( Id. ). Despite the fact that the petition was untimely and successive, the court found that state law barred petitioner's conviction for both solicitation to commit murder and principal to attempted murder. ( Id. ). The state district court dismissed Count I, solicitation to commit murder. ( Id. ). An amended judgment of conviction was filed on June 30, 2009. (Exhibit 73).
Petitioner filed two notices of appeal. The first notice of appeal was filed on July 13, 2009, seeking to appeal the state district court's order granting in part and denying in part, the habeas petition. (Exhibit 74). Petitioner's second notice of appeal, filed July 15, 2009, was a direct appeal from the amended judgment of conviction. (Exhibit 75).
In the appeal from the amended judgment of conviction, in Case No. 54189, on August 25, 2009, the Nevada Supreme Court dismissed the appeal. (Exhibit 78). The Nevada Supreme Court ruled that: "Because the amended judgment of conviction did not otherwise alter the judgment of conviction, appellant is not an aggrieved party. Only an aggrieved party may appeal. NRS 177.015." ( Id., at p. 1). The Court further ruled that, to the extent petitioner sought to appeal from the original judgment of conviction, the notice of appeal was untimely because it was filed more than 13 years after entry of the original judgment of conviction. ( Id., at pp. 1-2). Remittitur issued on September 22, 2009. (Exhibit 81).
In the appeal from the district court's order granting in part and denying in part the habeas petition, on February 4, 2010, in Case No. 54171, the Nevada Supreme Court found that the petition was subject to procedural bars as untimely, successive, and an abuse of the writ. (Exhibit 82). The Court further found that petitioner had not established good cause or actual innocence to overcome the procedural bars. ( Id. ). The Nevada Supreme ...