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Lewis v. State

United States District Court, D. Nevada

June 15, 2017

WILLIE RAY LEWIS, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

          ORDER

          GLORIA M. NAVARRO, CHIEF JUDGE.

         This counseled habeas matter under 28 U.S.C. § 2254 is before the court on respondents' motion to dismiss in part petitioner Willie Ray Lewis' counseled fourth-amended petition (ECF No. 86). Lewis opposed (ECF No. 89), and respondents replied (ECF No. 92).

         I. Procedural History and Background

         On April 7, 2006, a jury convicted Lewis of count 1 and 2: lewdness with a minor under the age of fourteen; counts 3-23, 26-45: sexual assault with a minor under sixteen years of age; count 24: attempted sexual assault with a minor under sixteen years of age; and count 25: lewdness with a minor under the age of fourteen (exhibit 14).[1] The state district court sentenced Lewis as follows: counts 1 and 2, 48 to 120 months concurrent; count 3, life with parole after 60 months, consecutive to count 2; counts 4 through 23, life with possibility of parole after 240 months concurrent with each other; counts 26 through 45, a sentence of life with possibility of parole after 240 months concurrent with each other; count 24, to a term of a minimum of 96 months and a maximum term of 240 months concurrent to count 23; count 25, life with a minimum term of 120 months to run consecutive to count 24. Exh. 16. The judgment of conviction was filed on June 16, 2006. Exh. 17. On August 7, 2007, the Nevada Supreme Court affirmed Lewis' convictions in part and reversed in part. Exh. 24. Wright filed a notice of appeal. Exh. 45. The state supreme court concluded that as to victim S.L., while sufficient evidence was presented to support five sexual assault convictions, insufficient evidence was presented as to 34 other counts. Id. at 3-4. Remittitur issued on September 4, 2007. Exh. 26. An amended judgment of conviction was filed on October 24, 2007, stating “it is ordered that counts 5-23 and counts 29-45 are dismissed.” Exh. 29. Lewis did not appeal the amended judgment of conviction.

         On October 16, 2007, Lewis filed a proper person state postconviction habeas corpus petition. Exh. 28. The state district court denied the petition on January 22, 2008. Exh. 33. On June 18, 2009, the Nevada Supreme Court affirmed the denial of the petition in part and reversed and remanded in part. Exh. 35. The state supreme court ordered the district court to consider whether appointment of counsel was appropriate and directed the district court to conduct an evidentiary hearing with respect to whether defense counsel should have interviewed certain witnesses. Id.

         Lewis filed two motions for appointment of counsel, which the state district court denied. Exhs. 37, 39, 40, 42. The Nevada Supreme Court dismissed Lewis' appeal of the denial of the motions for counsel for a jurisdiction defect on the basis that no statute or court rule provides for an appeal of an order denying a motion for appointment of counsel. Exh. 43. The state district court conducted an evidentiary hearing on the state petition, and the court denied the petition on December 14, 2009. Exhs. 45, 47. The Nevada Supreme Court affirmed the denial of the petition on June 9, 2010, and remittitur issued on July 8, 2010. Exhs. 55, 57.

         Lewis filed a second proper person state postconviction habeas petition on July 7, 2010, and a supplement to the petition on July 30, 2010. Exhs. 56, 59. On August 2, 2010, the state district court dismissed the petition as successive and untimely. Exh. 60. The Nevada Supreme Court affirmed the district court on March 17, 2011, and remittitur issued on April 12, 2011. Exhs. 63, 64.

         On June 20, 2010, Lewis dispatched his federal habeas petition for filing (ECF No. 7). This court appointed counsel, and petitioner filed a counseled third-amended petition on November 4, 2011 (ECF No. 29). Petitioner filed a counseled fourth-amended petition on February 16, 2012 (ECF No. 43).

         On February 4, 2013, the court granted respondents' first motion to dismiss in part and denied it in part (ECF No. 53). This court concluded that portions of grounds 2, 3, and 4 were unexhausted and ultimately dismissed the unexhausted portions of grounds 2 and 3 without prejudice (Id.; ECF No. 76). The court granted Lewis' motion for stay and abeyance pending his exhaustion of ground 4(b) (ECF No. 76).

         Lewis filed a third state habeas petition on July 17, 2014. Exhs. 78, 79. The state district court denied the petition on November 20, 2014, the Nevada Supreme Court affirmed the denial on February 10, 2016, and remittitur issued on March 18, 2016. Exhs. 84, 91, 92.

         On April 27, 2016, this court granted Lewis' motion to reopen his federal habeas proceedings (ECF No. 82). Respondents moved to dismiss several grounds as unexhausted and/or procedurally barred (ECF No. 86). Lewis opposed (ECF No. 89). In their reply, respondents argued that ground 4(b) is procedurally defaulted and withdrew all other arguments (ECF No. 92).

         II. Procedural Default

         Generally, “a state prisoner's failure to comply with the state's procedural requirements in presenting his claims bar him or her from obtaining a writ of habeas corpus in federal court under the adequate and independent state ground doctrine.” Schneider v. McDaniel, 674 F.3d 1144, 1152 (9th Cir.2012) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). The Coleman Court stated the effect of a procedural default as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that ...

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