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Anderson v. Baca

United States District Court, D. Nevada

March 13, 2018

RICARDO ANDERSON, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' unopposed motion to dismiss (ECF No. 18.). Respondents seek dismissal of the petition as untimely, and respondents further contend, inter alia, that Grounds 1 through 3 constitute noncognizable claims of pre-plea error.

         I. BACKGROUND

         Petitioner Ricardo Anderson challenges his Nevada state conviction, pursuant to a guilty plea, of embezzlement, theft, and attempt to obtain money by false pretenses.

         On November 19, 2010, the state district court sentenced petitioner to term sentences on the three charges and then suspended sentence and placed him on probation not to exceed five years with special conditions. (ECF No. 19-26; Exh. 26.) That same day, the court entered an order titled as “Suspended Sentence.” The order reflected that Anderson had been adjudged guilty of the offenses at sentencing, stated the sentences imposed, and suspended the sentences with probation. (ECF No. 19-27; Exh. 27.)

         Anderson's probation thereafter was revoked. On November 18, 2011, the state district court entered an order titled as a “Judgment of Revocation of Probation.” The order reflected, inter alia, the prior adjudication of guilt, the sentences previously imposed with suspension of sentence and probation, and the revocation of probation. (ECF No. 20-15; Exh. 46.)

         On June 11, 2012, Anderson filed a state post-conviction petition. The petition was denied on the merits, and the state appellate courts affirmed also on the merits. The remittitur issued on August 19, 2015. (ECF Nos. 20-20, 22-18, 22-22, 23-23, 23-28, 23-29 & 24-3; Exh. Nos. 51, 104, 108, 134, 139, 140 & 144.)

         On July 28, 2015, during the pendency of the above proceedings, Anderson filed a second state post-conviction petition. The state district court denied the petition as, inter alia, untimely, with the court regarding the November 19, 2010, order as the judgment of conviction. Anderson did not appeal. (ECF Nos. 24, 24-7 & 24-8; Exhs. 141, 148 & 149.)

         On December 10, 2015, Anderson filed a notice of motion and motion styled as a “Motion to Dismiss, Pursuant to NRS 174.105, Motion to Vacate Sentences/Judgement, Pursuant to NRS 174.145, and N.R.Civ.P. Rule 60(b)(4).” (ECF No. 24-9; Exh. 150.) The record presented in this matter does not reflect the action, if any, that was taken with respect to that motion.

         On January 4, 2016, Anderson filed a third state post-conviction petition. The state district court denied the petition as, inter alia, untimely. (ECF Nos. 24-10, 24-30 & 24-31; Exhs. 151, 171 & 172.) The state supreme court's online docket as well as online legal research resources reflect that the state appellate courts affirmed the denial of the petition as, inter alia, untimely, with the appellate courts also regarding the November 19, 2010, order as the judgment of conviction. See Anderson v. Warden, Northern Nevada Correctional Center, 2017 WL 4679936 (Nev. Ct. App., Oct. 12, 2017).

         Meanwhile, on January 25, 2016, Anderson filed a notice of motion and motion styled as a “Motion to Dismiss, Pursuant to NRS 175.05, Motion to Vacate Sentence/Judgement, Pursuant to NRS 174-175, and N.R.Civ.P. Rule 60(b)(4).” The motion was similar to, but not completely identical to, the earlier December 10, 2015, motion. The state district court directed a response to the motion. The State responded, inter alia, that the motion was untimely. (ECF Nos. 24-11, 24-12, 24-21 & 24-23; Exhs. 152, 153, 162 & 164.) The record presented in this matter does not reflect the action, if any, that was taken with respect to that motion.

         On or about September 14, 2016, petitioner mailed the federal petition to the Clerk of this Court for filing. (ECF No. 1-1 at 12.)

         II. DISCUSSION

         A. Timeliness

         While the motion to dismiss has not been opposed, the Court is not persuaded on the showing made that the petition is untimely, due in part to the intervening decision ...


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