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Redenius v. Palmer

United States District Court, D. Nevada

February 16, 2017

DUSTIN O. REDENIUS, Petitioner,
v.
JACK PALMER et al., Respondents.

          ORDER

         On October 20, 2014, this Court received Petitioner Dustin O. Redenius's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 2), an application to proceed in forma pauperis (ECF No. 3), and a motion for appointment of counsel (ECF No. 4). The Court granted Petitioner's application to proceed in forma pauperis. (ECF No. 6). On December 30, 2014, this Court appointed a Federal Public Defender for the District of Nevada to represent petitioner. (Id.) On January 6, 2015, Petitioner, counseled, filed a supplement to pro se petition for a writ of habeas corpus. (ECF No. 8). On October 2, 2015, Petitioner, counseled, filed his first amended petition for writ of habeas corpus. (ECF No. 16). The Court now addresses Respondents' motion to dismiss (ECF No. 35).

         I. PROCEDURAL BACKGROUND

         On April 19, 2007, a jury in the Second Judicial District Court of the State of Nevada in and for the County of Washoe found Petitioner, counseled, not guilty of sexual assault on a child (Count I), but guilty of lewdness with a child under the age of fourteen years (Count II). (ECF No. 20-6). The court sentenced Petitioner to “a term of life imprisonment in the Nevada State Prison with a minimum parole eligibility after ten years.” (ECF No. 20-8). On June 8, 2007, Petitioner, counseled, filed a notice of appeal. (ECF No. 20-10). On February 26, 2009, the Nevada Supreme Court affirmed the judgment of conviction and issued its remittitur on March 24, 2009. (ECF No. 9-4; ECF No. 9-5).

         On March 9, 2010, Petitioner filed his pro se petition for writ of habeas corpus in state district court. (ECF No. 20-12). The state district court appointed post-conviction counsel to represent Petitioner. (ECF No. 20-13; ECF No. 20-14). Counsel filed a supplemental petition for writ of habeas corpus. (ECF No. 20-15). The state district court denied the petition and filed an order on April 2, 2013. (ECF No. 22-2 at 5; ECF No. 22-3). On April 11, 2013, Petitioner, counseled, filed a notice of appeal. (ECF No. 22-4). On March 27, 2014, the Nevada Supreme Court affirmed the state district court's order denying Petitioner's post-conviction petition for writ of habeas corpus. (ECF No. 9-9). Petitioner filed a petition for rehearing which the Nevada Supreme Court denied. (ECF No. 22-5; ECF No. 22-6). Petitioner moved for en banc reconsideration which the Nevada Supreme Court denied on September 24, 2014. (ECF No. 22-7; ECF No. 22-8). On October 20, 2014, the Nevada Supreme Court issued its remittitur. (ECF No. 9-10).

         On October 14, 2014, Petitioner mailed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to this Court. (ECF No. 2). On December 30, 2014, this Court appointed a Federal Public Defender for the District of Nevada to represent Petitioner. (ECF No. 6) On January 6, 2015, Petitioner, counseled, filed a supplement to pro se petition for a writ of habeas corpus which stated that the claims in the supplement were meant to “be in addition to, and not supplant or abrogate, the claims in [Petitioner's] pro se petition.” (ECF No. 8 at 1). On October 2, 2015, Petitioner, counseled, filed his first amended petition for writ of habeas corpus. (ECF No. 16).

         On December 22, 2015, Respondents filed a motion to strike supplement to pro se petition. (ECF No. 26). After the motion was fully briefed (ECF No. 27, 28), this Court issued an order denying the motion to strike as moot and finding that Petitioner's “supplement” was “an attempt to set out additional factual allegations in his original pleading” pursuant to Fed.R.Civ.P. 15(c). (ECF No. 29 at 2). Respondents filed a motion for reconsideration (ECF No. 30) which the Court denied (ECF No. 44).

         II. DISCUSSION

         In the motion to dismiss, Respondents argue that the amended petition is untimely, that Ground 3(e) is not cognizable under the federal constitution, and that Ground 3(c) is unexhausted.[1] (ECF No. 35 at 2, 6, 8). Petitioner filed a response in opposition (ECF No. 42) and Respondents filed a reply (ECF No. 43). The Court will address these arguments in turn.

         A. Relation Back

         In the motion to dismiss, Respondents acknowledge that Petitioner's original § 2254 petition, filed on October 20, 2014, is timely. (ECF No. 35 at 4). Respondents argue that the amended petition is untimely unless Petitioner establishes that his amended petition relates back to the original timely filed petition. (Id.) Respondents argue that Petitioner's “supplement” is not a document to which Petitioner's amended petition can relate back to. (Id.). Respondents assert that the Court should dismiss Petitioner's amended petition as untimely “to the extent that he is unable to demonstrate that all of the claims relate back to his original timely filed petition.”[2] (Id. at 6).

         In response, Petitioner analyzes all four grounds in the amended petition and argues that they relate back. (ECF No. 42 at 5-11).

         In reply, Respondents argue that Grounds 3(c) and 3(d) are untimely and do not relate back. (ECF No. 43 at 1).

         Pursuant to Federal Rule of Civil Procedure 15, an amended pleading “relates back” to the date of the original pleading when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B). An amended petition only relates back to the original petition if the amended claims are “tied to a common core of operative facts” as alleged in the original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005). In Mayle, the Supreme Court held that an amended petition does not relate back to the original petition “when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Id. at 650. The Supreme Court rejected the argument that “the one-year period could be revived simply because [the amended claims] relate to the same trial, conviction, or sentence” as the claims asserted in the original petition. Id. at 662.

         As an initial matter, the Court notes that Respondents do not argue that Grounds 1, 2, and 4 are untimely in their reply. (See generally ECF No. 43). The Court has reviewed Petitioner's timeliness and relation back arguments with respect to those ...


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