United States District Court, D. Nevada
an action for habeas relief under 28 U.S.C. § 2254
brought by Hyrum Joseph West, a Nevada prisoner. Respondents
have filed a motion to dismiss West's petition for writ
of habeas corpus. ECF No. 12. As the bases for their motion,
respondents contend that all the grounds for relief in
West's petition should be dismissed as procedurally
barred and/or as not cognizable in a federal habeas
considered the parties' arguments and relevant portions
of the record, the court concludes as follows.
April 2011, the State charged West in the Fifth Judicial
District Court, Nye County, Nevada, in Case No. CR 6693, with
one count of sale of a controlled substance, third offense,
within 1000 feet of a park, and one count of trafficking in a
schedule I controlled substance. In November 2011, the State
filed a second-amended information charging West with one
count of sale of a controlled substance, third offense. On
November 15, 2011, West presented argument in support of
motions filed in Case No. CR 6429, including a motion to
dismiss in which he argued the State violated double jeopardy
by charging West with the same crime in Case No. CR 6429 and
the present case, Case No. CR 6693.
court denied West's motion. West then changed his plea in
Case No. CR 6693, entering a conditional guilty plea to the
single count contained in the second-amended information, but
reserving the right to challenge the denial of his pretrial
motion to dismiss. The court sentenced West to 72-180 months,
to run concurrent to the sentence received in Case No. CR
court filed the judgment of conviction on November 29, 2011.
West appealed., arguing that the "[p]rosecution of the
instant case contravened the Double Jeopardy Clause and the
related piecemeal doctrine; thus, the district court erred by
denying the motion to dismiss." On December 13, 2012,
the Nevada Supreme Court affirmed West's conviction.
December 2013, West filed a proper person state habeas
petition and supporting memorandum. In Ground 1, he alleged
vindictive prosecution, a violation of his speedy trial
rights, and ineffective assistance of trial and appellate
counsel. In Ground 2, he alleged insufficient evidence to
support the conviction, a break in the chain of custody, and
ineffective assistance of appellate counsel. In Ground 3, he
alleged a violation of the Double Jeopardy Clause and issue
preclusion/collateral estoppel based upon West's
conviction in Case No. CR 6429, and ineffective assistance of
2015, the state district court entered an order dismissing
West's entire petition on procedural grounds. West
appealed. On November 19, 2015, the Nevada Court of Appeals
affirmed the lower court's result, but found the state
district court erred in rejecting West's ineffective
assistance of appellate counsel claims on procedural grounds.
The court addressed those claims on the merits and denied
about December 18, 2015, West mailed to this court his
federal habeas petition containing three grounds. That
petition was filed herein on January 15, 2016, and is the
subject of respondents' motion to dismiss.
assert that grounds for relief contained in Grounds 1, 2, and
3 of West's petition are not cognizable in a federal
respondents argue that West's guilty plea serves as a bar
to several of his substantive allegations. In Tollett v.
Henderson, the United States Supreme Court held that
"when a criminal defendant has solemnly admitted in open
court that he is in fact guilty of the offense with which he
is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that
occurred prior to the entry of the guilty plea." 411
U.S. 258, 267 (1973). A petitioner may only attack the
voluntary and intelligent nature of the guilty plea.
Ground 1, West raises a claim that delays in the prosecution
of his case violated his constitutional right to a speedy
trial. This claim is barred under Tollett. See United
States v. Bohn, 956 F.2d 208, 209 (9th Cir.
1992) (holding that defendant's guilty plea waived claims
for violation of the Speedy Trial Act). In addition, his plea
forecloses any claim that his trial counsel was ineffective
for not invoking his right to a speedy trial. See Moran
v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994)
(holding that guilty plea forecloses claims of ineffective
assistance of counsel unrelated to the plea itself).
1 also includes a claim that West was vindictively
prosecuted. Tollett does not necessarily bar such a
claim. See Blackledge v. Perry,417 U.S. 21, 30-31
(1974). However, none of West's allegations come close to
stating a cognizable vindictive prosecution claim. See
United States v. Goodwin,457 U.S. 368, 372 (1982)
(explaining that the constitutional violation based on
vindictive prosecution arises from punishing an individual
for exercising a protected statutory or constitutional
right). Thus, that portion of Ground 1 shall also be
dismissed. See O'Bremski v. Maass,915 ...