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O'Neill v. Baker

United States District Court, D. Nevada

January 30, 2018

CHRISTOPHER O'NEILL, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          MIRANDA DU, UNITED STATES DISTRICT JUDGE

         This 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.)

         I. PROCEDURAL HISTORY & BACKGROUND

         On June 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).[1] 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. (Exh. 52.)

         O'Neill 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).[2]Remittitur issued on April 3, 2007. (Exh. 51.)

         On 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.)

         On June 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.)

         On July 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.)

         On 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.)

         O'Neill 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.)

         O'Neill 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.)

         II. LEGAL STANDARDS

         A. Exhaustion

         State 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 ...

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