Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Keefe v. Legrand

United States District Court, D. Nevada

March 27, 2018

BRIAN KERRY O'KEEFE, Petitioner,
v.
ROBERT L. LEGRAND, et al., Respondents.

          ORDER

          ROBERT C. JONES, UNITED STATES DISTRICT JUDGE

         This 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).

         I. Procedural History and Background

         O'Keefe 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).[1] 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.

         On 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.

         The 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. Exh. 244.

         O'Keefe 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.

         O'Keefe 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).

         II. Legal Standards & Analysis

         a. Relation Back

          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).

         Respondents 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.

         b. 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 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 process; or
(ii) circumstances exist that render such process ineffective to protect the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.