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Lepley v. Filson

United States District Court, D. Nevada

November 29, 2017

BRIAN EUGENE LEPLEY, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner's application (ECF No. 1) to proceed in forma pauperis and for initial review. The Court finds that petitioner is unable to pay the filing fee, and the pauper application therefore will be granted. On initial review, it appears that the Court lacks jurisdiction over the petition because it constitutes a successive petition. Petitioner therefore will be directed to show cause why the petition should not be dismissed without prejudice for lack of jurisdiction.

         Background

         Petitioner Brian Lepley challenges the lifetime supervision imposed by his Nevada judgments of conviction.

         The record and order of dismissal in petitioner's prior habeas action in No. 2:14-cv-01575-JAD-GWF reflects the following state and federal procedural history.

         Petitioner originally was convicted, pursuant to a jury verdict, of one count of sexual assault; one count of open or gross lewdness; two counts of offering, attempting, or committing an unauthorized act relating to a controlled substance; five counts of possession of a controlled substance, and one count of intentional transmission of the human immunodeficiency virus.

         The original judgment of conviction was filed on May 6, 1998, and included, inter alia, the following provision:

The Defendant shall be ordered to lifetime supervision to commence after this term of imprisonment and period of release on parole, pursuant to NRS 176.113.

(No. 2:14-cv-01575, ECF No. 21-3, Exhibit 82.)

         On appeal, the Supreme Court of Nevada, in No. 32562 in that court, reversed the sexual assault conviction due to trial error, affirmed the conviction on the remaining counts, and remanded for a new trial on the sexual assault count.

         On remand, petitioner again was found guilty of sexual assault.

         On May 9, 2002, the state district court entered a judgment of conviction only on the sexual assault charge, leaving the May 6, 1998, judgment of conviction untouched. The judgment included, inter alia, the following provision:

Defendant having been convicted of a sexual offense listed in NRS 176.0931, shall receive a special sentence of lifetime supervision as a sex offender.

(No. 2:14-cv-01575, ECF No. 23-22, Exhibit 153.)

         Thereafter, on August 9, 2010, the district court entered an amended judgment of conviction as to the May 9, 2002, judgment that gave petitioner presentence credit for 1404 days. The amended judgment of conviction carried forward, inter alia, the ...


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