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Chavez v. LeGrand

United States District Court, D. Nevada

January 29, 2018

EDILFREDO CHAVEZ, Petitioner,
v.
ROBERT LeGRAND, et al, Respondents.

          ORDER

         Introduction

         In this habeas corpus action, the respondents have filed a motion to dismiss, arguing that four of the claims in Edilfredo Chavez's amended habeas petition are barred by the procedural default doctrine. The parties have completed their briefing of the motion to dismiss. The Court will grant the motion in part and deny it in part, and will dismiss two of Chavez's claims as barred by the procedural default doctrine.

         Background

         On March 19, 2009, Chavez was convicted, and sentenced as follows, after a jury trial in Nevada's Eighth Judicial District Court, for crimes committed against his wife's young sister: Count 1, sexual assault with a minor under fourteen years of age, 420 months to life in prison; Count 3, sexual assault with a minor under fourteen years of age, 420 months to life in prison, consecutive to the sentence on Count 1; Count 4, sexual assault with a minor under fourteen years of age, 420 months to life in prison, concurrent with the sentence on Count 3; Count 11, statutory sexual seduction, 12 to 32 months in prison, concurrent with the sentence on Count 4; Count 13, statutory sexual seduction, 12 to 32 months in prison, concurrent with the sentence on Count 11; Count 15, statutory sexual seduction, 12 to 32 months in prison, concurrent with the sentence on Count 13; Count 16, lewdness with a child under the age of fourteen, 120 months to life in prison, concurrent with the sentence on Count 15; Count 19, lewdness with a child under die age of fourteen, 120 months to life in prison, concurrent with the sentence on Count 16; Count 20, use of a minor in producing pornography, 60 months to life in prison, concurrent with the sentence on Count 19; Count 21, use of a minor in producing pornography, 60 months to life in prison, concurrent with the sentence on Count 20; Count 22, possession of a visual presentation depicting sexual conduct of a child, 12 to 36 months in prison, concurrent with the sentence on Count 21; and Count 23, possession of a visual presentation depicting sexual conduct of a child, 12 to 36 months in prison, concurrent with the sentence on Count 22. See Judgment of Conviction, Exhibit 37 (ECF No. 16-5).

         Chavez appealed, and the Nevada Supreme Court affirmed on May 12, 2011. See Order of Affirmance, Exhibit 45 (ECF No. 16-13).

         On March 5, 2012, Chavez filed a petition for writ of habeas corpus in die state district court. See Petition for Writ of Habeas Corpus, Exhibit 48 (ECF No. 16-16). Counsel was appointed for Chavez, and, with counsel, he filed supplemental points and authorities in support of his habeas petition. See Supplemental Points and Authorities in Support of Post-Conviction Writ, Exhibit 57 (ECF No. 17-6). The state district court held an evidentiary hearing on December 18, 2012. See Reporter's Transcript of Evidentiary Hearing, Exhibit 59 (ECF No. 18). The state district court denied the petition in a written order entered on February 7, 2013. See Findings of Fact, Conclusions of Law and Order, Exhibit 61 (ECF No. 18-2). Chavez appealed, and the Nevada Supreme Court affirmed on June 24, 2014. See Order of Affirmance, Exhibit 71 (ECF No. 19-4).

         On July 17, 2014, this Court received Chavez's pro se federal petition for writ of habeas corpus. See Petition for Writ of Habeas Corpus (ECF No. 4). The Court appointed counsel for Chavez. See Order entered July 31, 2014 (ECF No. 3). With counsel, Chavez filed a first amended habeas petition - now the operative petition - on December 23, 2014 (ECF No. 9). Chavez's amended petition includes seven claims, designated Grounds 1, 2, 3A, 3B, 3C, 4A and 4B.

         On February 19, 2015, respondents filed a motion to dismiss (ECF No. 20), contending that Chavez's amended petition included claims not exhausted in state court. On May 7, 2015, Chavez filed a motion for stay, requesting a stay of this case while he exhausted claims in state court (ECF No. 23). On July 27, 2015, the Court ruled on those motions, granting the motion to dismiss in part and denying it in part, and granting the motion for stay (ECF No. 33). The Court determined that certain of the claims in Chavez's amended petition were unexhausted in state court, and stayed the action pending Chavez's further state-court proceedings.

         On September 14, 2015, Chavez initiated a second state habeas action. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 74 (ECF No. 40-1). The state district court denied that petition in a written order filed on December 21, 2015, ruling that the petition was barred by the state-law statute of limitations (NRS 34.726(1)) and rule regarding successive petitions (NRS 34.810(2)). See Findings of Fact, Conclusions of Law and Order, Exhibit 80 (ECF No. 40-7). Chavez appealed, and the Nevada Court of Appeals affirmed on August 17, 2016. See Order of Affirmance, Exhibit 86 (ECF No. 40-13).

         On October 13, 2016, Chavez moved to lift the stay of this case, informing the Court that his further state-court proceedings had been completed (ECF No. 39), and the Court granted that motion, and lifted the stay, on December 12, 2016 (ECF No. 43).

         On April 11, 2017, the respondents filed the motion to dismiss that is now before the Court (ECF No. 46). Chavez filed an opposition to the motion to dismiss on June 9, 2017 (ECF No. 47). Respondents replied on July 7, 2017 (ECF No. 48).

         Discussion

         Motion to Dismiss

         In their motion to dismiss, respondents argue that Grounds 1, 3C, 4A and 4B of Chavez's first amended petition are barred by the ...


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