United States District Court, D. Nevada
C. JONES, UNITED STATES DISTRICT JUDGE
habeas matter comes before the court on respondents'
motion to dismiss certain claims in petitioner Brian Kerry
O'Keefe's pro se second-amended petition
(ECF No. 56). O'Keefe opposed (ECF No. 79), and
respondents replied (ECF No. 91).
Procedural History and Background
was tried in Nevada state court three times on charges of
murder with use of a deadly weapon. The first jury convicted
him of second-degree murder, and the judgment of conviction
was entered on May 8, 2009 (exhibit 60). On April 7, 2010,
the Nevada Supreme Court reversed O'Keefe's
conviction and remanded for a new trial because “the
district court abused its discretion when it instructed the
jury that second-degree murder includes involuntary killings
that occur in the commission of an unlawful act because the
State's charging document did not allege that O'Keefe
killed the victim while he was committing an unlawful act and
the evidence at trial did not support this theory of
second-degree murder.” Exh. 80.
August 19, 2010, a second-amended information was filed,
charging O'Keefe with murder in the second degree with
use of a deadly weapon. Exh. 120. The jury deadlocked, and
the court declared a mistrial. Exhs. 135, 135. Pursuant to a
third trial, the jury convicted O'Keefe on June 15, 2012.
Exh. 207. The state district court sentenced him to a term of
120 to 300 months, with a consecutive term of 8 to 20 years
for the deadly weapon enhancement. Exhs. 211, 212. Judgment
of conviction was entered on September 5, 2012. Exh. 217.
Nevada Supreme Court affirmed O'Keefe's conviction on
April 10, 2013. Exh. 233. A petition for certiorari with the
United States Supreme Court was denied on October 15, 2013.
filed a motion to modify and/or correct illegal sentence on
January 27, 2014. Exh. 255. The Nevada Supreme Court affirmed
the denial of that motion on July 23, 2014. Exh. 289.
O'Keefe filed a state postconviction habeas corpus
petition and a counseled, supplemental state petition. Exhs.
308, 337. The Nevada Supreme Court affirmed the denial of the
petition as procedurally barred on June 22, 2016. Exh. 427.
Remittitur issued on December 16, 2016. Exh. 447.
dispatched his federal habeas petition for filing on or about
September 15, 2014 (ECF No. 1-1). On February 1, 2017, this
court granted petitioner's motion to withdraw counsel and
proceed pro se (ECF No. 49). O'Keefe filed a
pro se second-amended petition; respondents now
argue that some claims in the second-amended petition do not
relate back to any timely-filed earlier petition and that
some grounds are unexhausted or noncognizable in federal
habeas (ECF No. 56).
Legal Standards & Analysis
Respondents argue that several grounds in the second-amended
petition do not relate back to a timely-filed petition and
should thus be dismissed as untimely (ECF No. 56). The
Antiterrorism and Effective Death Penalty Act (AEDPA) imposes
a one-year statute of limitations on the filing of federal
habeas corpus petitions. 28 U.S.C. § 2244(d). The
one-year time limitation can run from the date on which a
petitioner's judgment became final by conclusion of
direct review, or the expiration of the time for seeking
direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a
properly filed petition for state postconviction relief can
toll the period of limitations. 28 U.S.C. § 2244(d)(2).
state in their motion to dismiss that 104 days of the
one-year limitations period had expired when O'Keefe
filed this federal habeas action (ECF No. 56, p. 9. The Ninth
Circuit vacated this court's dismissal of the petition on
July 27, 2016, and the order on mandate issued on August 23,
2016 (ECF Nos. 30, 32). On November 3, 2016, O'Keefe
commenced filing motions to withdraw counsel and proceed
pro se and for leave to file an amended petition
(see, e.g., ECF Nos. 33, 42). On February 1, 2017,
this court granted O'Keefe leave to file an amended
petition within 90 days, and O'Keefe filed his
second-amended petition March 15, 2017 (ECF Nos. 49, 50). In
light of the procedural posture of this case, O'Keefe is
entitled to equitable tolling of the statute of limitations
until the filing of the second-amended petition. Holland
v. Florida, 560 U.S. 631, 649 (2009) (quoting prior
authority) (a petitioner may be entitled to equitable tolling
if he can show “‘(1) that he has been pursuing
his right diligently, and that (2) some extraordinary
circumstance stood in his way' and prevented timely
filing”). Respondents argument that the claims in the
second-amended petition must relate back to the first-amended
petition is, therefore, unavailing.
prisoners seeking federal habeas relief must comply with the
exhaustion rule codified in § 2254(b)(1):
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 granted unless it appears that -
(A) The applicant has exhausted the remedies available in the
court so the State; or
(B) (i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the ...