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Burgon v. Nevens

United States District Court, D. Nevada

March 19, 2018

CLAY MERRITT BURGON, Petitioner,
v.
D.W. NEVEN, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         I. Introduction

         This action is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Clay Merritt Burgon, a Nevada prisoner. The respondents have filed a motion to dismiss. The Court will grant the motion to dismiss in part and deny it in part. The Court will dismiss one of the claims in Burgon's amended petition - Ground 3(2) - as barred by the statute of limitations; in all other respects, the motion to dismiss will be denied. This order is without prejudice to respondents raising certain of their arguments in their answer, as is explained below.

         II. Background

         On August 6, 2010, Burgon was charged by information with robbery with use of a deadly weapon, burglary while in possession of a firearm, failure to stop on signal of a police officer, and ex-felon in possession of a firearm. See Information, Exhibit 10 (ECF No. 9-10). On March 3, 2011, Burgon agreed to plead guilty to robbery with use of a deadly weapon and burglary while in possession of a firearm. See Guilty Plea Agreement, Exhibit 19 (ECF No. 9-19). Burgon entered his guilty pleas on that same date. See Reporter's Transcript of Plea, Exhibit 20 (ECF No. 9-20). On May 5, 2011, Burgon was sentenced, under Nevada's habitual criminal sentencing laws, to two consecutive terms of life in prison with the possibility of parole after ten years. See Reporter's Transcript of Sentencing, Exhibit 21 (ECF No. 9-21). The judgment was entered May 12, 2011. See Judgment of Conviction, Exhibit 23 (ECF No. 9-23).

         Burgon filed a notice of appeal on August 26, 2011. See Notice of Appeal, Exhibit 24 (ECF No. 10). Burgon's appeal was dismissed on September 16, 2011, because the notice of appeal was not timely filed. See Order Dismissing Appeal, Exhibit 28 (ECF No. 10-4).

         On February 21, 2012, Burgon filed, in the state district court, a pro se petition for writ of habeas corpus. See Petition for Writ of Habeas Corpus, Exhibit 34 (ECF No. 10-10). Counsel was appointed, and, with counsel, Burgon filed a supplement to the petition on October 19, 2012. See Supplemental Brief in Support of Petition for Writ of Habeas Corpus, Exhibit 42 (ECF No. 10-18). The state district court denied the petition in a written order filed on April 19, 2013. See Findings of Fact, Conclusions of Law and Order, Exhibit 47 (ECF No. 11-1). Burgon appealed. See Appellant's Opening Brief, Exhibit 59 (ECF No. 11-13). The Nevada Supreme Court affirmed on May 13, 2014. See Order of Affirmance, Exhibit 64 (ECF No. 11-18). The remittitur issued on June 10, 2014. See Remittitur, Exhibit 66 (ECF No. 11-20).

         This Court received Burgon's pro se federal habeas petition, initiating this action, on July 9, 2014 (ECF No. 6).

         On May 13, 2015, respondents filed a motion to dismiss (ECF No. 8). Burgon responded with a motion for motion for stay (ECF No. 19). Both motions were briefed (ECF Nos. 18, 20, 21, 22). On March 31, 2016, in light of the briefing of the motion to dismiss and motion for stay, the Court appointed counsel for Burgon, and denied the motions without prejudice. See Order entered March 31, 2016 (ECF No. 24).

         Counsel appeared for Burgon (ECF No. 25), and filed an amended petition - now the operative petition in the case - on his behalf on April 11, 2017 (ECF No. 36). Burgon's amended petition asserts the following claims:

Ground 1(1): Burgon received ineffective assistance of his trial counsel in violation of his federal constitutional rights, because Burgon's trial counsel failed to participate in his presentence interview and failed to prepare him for the presentence interview.
Ground 1(2): Burgon received ineffective assistance of his trial counsel in violation of his federal constitutional rights, because Burgon's trial counsel failed to investigate Burgon's available defenses.
Ground 2: Burgon received ineffective assistance of his trial counsel in violation of his federal constitutional rights, because Burgon's trial counsel failed “to investigate Burgon's mental health and substance abuse history to negotiate a more favorable plea offer.”
Ground 3(1): Burgon received ineffective assistance of his trial counsel in violation of his federal constitutional rights, because Burgon's trial counsel failed “to advise Burgon about the mandatory violent habitual felon statute.”
Ground 3(2): Burgon received ineffective assistance of his trial counsel in violation of his federal constitutional rights, because Burgon's trial counsel failed “to object to the State's proffer of evidence regarding Burgon's two prior convictions.”
Ground 4: Burgon did not enter his guilty plea knowingly, intelligently or voluntarily, in violation of his federal constitutional rights.
Ground 5: Burgon received ineffective assistance of his trial counsel in violation of his federal constitutional rights, because Burgon's trial counsel failed “to file a notice of appeal, preserve Mr. Burgon's right to a direct appeal, and advise Mr. Burgon correctly regarding his appellate rights.”
Ground 6: Burgon received ineffective assistance of his trial counsel in violation of his federal constitutional rights, because Burgon's trial counsel failed “to advise him against unconditionally waiving his preliminary hearing without plea negotiations pending.”

Amended Petition (ECR No. 36), pp. 16-33.

         Respondents filed a motion to dismiss the amended petition on August 1, 2017 (ECF No. 46). In that motion, respondents contend that certain of Burgon's claims are barred by the statute of limitations, that certain of his claims are unexhausted in state court, and that certain of his claims are barred by the rule of Tollett v. Henderson, 411 U.S. 258 (1973).

         III. Discussion

         A. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996, imposed a one-year statute of limitations for federal habeas petitions filed by prisoners challenging state-court convictions or sentences:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time ...

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