United States District Court, D. Nevada
MIRANDA DU, UNITED STATES DISTRICT JUDGE
action is a counseled petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Before the Court is
respondents' second motion to dismiss certain grounds in
the first-amended petition. (ECF No. 68.) Petitioner
Christopher O'Neill opposed, and respondents replied.
(ECF Nos. 69, 72.)
PROCEDURAL HISTORY & BACKGROUND
7, 2005, O'Neill was convicted pursuant to jury verdicts
of three counts of possession of a forged instrument,
felonies in violation of NRS § 205.110. (Exhs. 24, 25,
26, 30). On August 25, 2005, O'Neill was
adjudicated a habitual criminal, sentenced to life with the
possibility of parole, with a minimum parole eligibility of
ten years on all three counts, to be served concurrently, and
the judgment of conviction was entered. (Exhs. 29, 30.)
Petitioner was not given credit for time served. (Exh. 30.)
An amended judgment of conviction was filed on April 5, 2007.
appealed, and the Nevada Supreme Court affirmed his
convictions and sentence on March 8, 2007. (Exh. 50);
O'Neill v. State, 153 P.3d 38, 45 (Nev.
2007).Remittitur issued on April 3, 2007. (Exh.
April 30, 2007, O'Neill filed his first state
postconviction petition for writ of habeas corpus. (Exh. 53.)
Following an evidentiary hearing, the state district court
denied the petition on July 21, 2010. (Exhs. 74, 82, 94, 102,
104, 108.) The Nevada Supreme Court affirmed the denial of
the petition on November 17, 2011, and remittitur issued on
December 13, 2011. (Exhs. 179, 181.)
6, 2007, O'Neill filed a motion for a new trial, which
the state district court denied on July 24, 2007. (Exhs. 57,
60.) On November 19, 2008, the Nevada Supreme Court affirmed
the denial of the motion for new trial, and remittitur issued
on December 16, 2008. (Exhs. 215, 216.)
25, 2010, O'Neill filed a motion to correct or modify his
sentence, which the state district court denied on September
1, 2010. (Exhs. 105, 123.) The Nevada Supreme Court affirmed
the denial of the motion on February 9, 2011, and remittitur
issued on March 7, 2011. (Exhs. 154, 159.)
August 24, 2010, O'Neill filed his second state
postconviction habeas petition. (Exh. 119.) The state
district court dismissed the petition on October 19, 2011.
(Exh. 173. The Nevada Supreme Court affirmed the dismissal of
the petition on June 13, 2012, and remittitur issued on July
10, 2012. (Exhs. 210, 211.)
dispatched this federal petition for writ of habeas corpus on
December 8, 2011. (ECF No. 4.) Through counsel, petitioner
filed an amended petition on November 21, 2012. (ECF No. 13.)
filed a third state postconviction petition in May 2015, and
in June 2015, this Court granted a stay and administratively
closed this case pending the completion of the state-court
litigation. (ECF No. 62.) On December 21, 2016, the Court
granted O'Neill's motion to reopen the case. (ECF No.
66.) Respondents now move to dismiss several grounds in the
first-amended petition as procedurally barred or unexhausted.
(ECF No. 68.)
prisoners seeking federal habeas relief must comply with the
exhaustion rule codified in § 2254(b)(1):
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be ...