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Villalobos v. Williams

United States District Court, D. Nevada

December 28, 2017

GONZALO VILLALOBOS, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         Introduction

         In this habeas corpus action, brought by Nevada prisoner Gonzalo Villalobos, the respondents have filed a motion to dismiss Villalobos' first amended petition for writ of habeas corpus. The Court will grant respondents' motion to dismiss and dismiss this action on the grounds that all the claims in Villalobos' first amended petition are barred by the statute of limitations, and, in addition, his fourth claim is procedurally defaulted.

         Background

         On September 6, 2015, following a jury trial, Villalobos was convicted in Nevada's Eighth Judicial District Court, in Clark County, Nevada, of one count of second degree murder with use of a deadly weapon, four counts of attempted murder with use of a deadly weapon, and five counts of discharging a firearm out of a motor vehicle. See Judgment of Conviction, Exhibit 52 (ECF No. 10-2). Villalobos was sentenced as follows:

Count 1

second degree murder

with use of a deadly weapon

two consecutive sentences of 10 years to life, consecutive to all other sentences

Count 2

attempted murder with use of a deadly weapon

two consecutive sentences of 2 to 5 years

Count 4

attempted murder with use of a deadly weapon

two consecutive sentences of 2 to 5 years, consecutive to the sentence on Count 2

Count 6

attempted murder with use of a deadly weapon

two consecutive sentences of 2 to 5 years, concurrent with the sentence on Count 4

Count 8

attempted murder with use of a deadly weapon

two consecutive sentences of 2 to 5 years, concurrent with the sentences on Counts 4 and 6

Count 10

discharging firearm out of a motor vehicle

a sentence of 2 to 5 years, concurrent with the sentences on counts 4, 6 and 8

Count 11

discharging firearm out of a motor vehicle

a sentence of 2 to 5 years, concurrent with the sentences on counts 4, 6 and 8

Count 12

discharging firearm out of a motor vehicle

a sentence of 2 to 5 years, concurrent with the sentences on counts 4, 6 and 8

Count 13

discharging firearm out of a motor vehicle

a sentence of 2 to 5 years, concurrent with the sentences on counts 4, 6 and 8

Count 14

discharging firearm out of a motor vehicle

a sentence of 2 to 5 years, concurrent with the sentences on counts 4, 6 and 8

         See id.

         Villalobos appealed. See Notice of Appeal, Exhibit 53 (ECF No. 10-3). On May 29, 2009, the Nevada Supreme Court affirmed. Order of Affirmance, Exhibit 91 (ECF No. 11-15). The Nevada Supreme Court denied rehearing and entered judgment on July 31, 2009. Clerk's Certificate, Exhibit 92 (ECF No. 11-16); Order Denying Rehearing, Exhibit 95 (ECF No. 11-19). The remittitur was issued on August 28, 2009. Remittitur, Exhibit 96 (ECF No. 11-20).

         Villalobos filed a petition for writ of habeas corpus in state court on March 1, 2013. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 97 (ECF No. 11-21); Memorandum in Support of Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 98 (ECF No. 11-22). In a written order filed on June 5, 2013, the state district court denied Villalobos' petition on the ground that it was barred by the statute of limitations. Findings of Fact, Conclusions of Law and Order, Exhibit 104 (ECF No. 12-2). Villalobos appealed. Notice of Appeal, Exhibit 105 (ECF No. 12-3). The Nevada Supreme Court affirmed the denial of the petition on statute of limitations grounds on September 16, 2014. Order of Affirmance, Exhibit 114 (ECF No. 12-12). The remittitur was issued on October 13, 2014. Remittitur, Exhibit 115 (ECF No. 12-13).

         This Court received Villalobos' original pro se federal habeas corpus petition for filing on December 4, 2014. See Petition for Writ of Habeas Corpus (ECF No. 5). Villalobos alleges that he mailed the petition to the Court for filing on November 26, 2014. Id. at 1.

         Respondents filed a motion to dismiss on August 12, 2015 (ECF No. 7). After the parties briefed that motion, the Court sua sponte appointed counsel for petitioner. See Order entered March 31, 2016 (ECF No. 16). The motion to dismiss Villalobos' original petition was denied, without prejudice, as moot. See id.

         Counsel -- the Federal Public Defender for the District of Nevada (FPD) -- appeared for Villalobos on April 14, 2016 (ECF No. 17). With counsel, Villalobos filed a first amended petition on February 10, 2017 (ECF No. 24). The first amended petition asserts four claims for relief:

Claim 1 - The trial court admitted evidence of extraneous bad acts in violation of Villalobos's right to a fair trial, right of confrontation, and due process as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
Claim 2 - Villalobos was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
Claim 3 - Law enforcement violated Villalobos's Fifth Amendment right to remain silent by conducting a custodial interrogation of Villalobos after he invoked his rights.
Claim 4 - Villalobos was denied the effective assistance of appellate counsel as guaranteed by the Sixth and Fourteenth Amendments ...

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