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Alvarez v. Neven

United States District Court, D. Nevada

March 27, 2018

JOSE IRAEL ALVAREZ, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          ROBERT C. JONES UNITED STATES DISTRICT JUDGE

         Before the court are the second amended petition for writ of habeas corpus (ECF No. 34), respondents' motion to dismiss (ECF No. 41), petitioner's opposition (ECF No. 43), and respondents' reply (ECF No. 48). The court grants the motion in part and dismisses the action because all five grounds of die second amended petition are untimely and do not relate back to a timely filed petition.

         Procedural History

         After a jury trial, petitioner was convicted of one count of trafficking in a controlled substance, four counts of allowing a child to be present during the commission of certain violations which involve controlled substances other than marijuana, one count of failure to stop on the signal of a peace officer, causing property damage, one count of offer, attempt or commission of unauthorized act relating to a controlled or counterfeit substance, two counts of battery with a deadly weapon, one count of assault with a deadly weapon, and four counts of abuse, neglect or endangerment of a child, not causing substantial bodily harm. Ex. 81 (ECF No. 15-10). Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 104 (ECF No. 15-33).

         Petitioner filed a post-conviction habeas corpus petition in the state district court. Ex. 111 (ECF No. 16-5). The state district court appointed counsel, who filed a supplement. Ex. 137 (ECF No. 16-31). The state district court denied die petition and supplement. Ex. 148 (ECF No. 17-7). Petitioner appealed. The Nevada Supreme Court affirmed. Ex. 174 (ECF No. 17-33).

         Petitioner then commenced this action with his original petition for a writ of habeas corpus (ECF No. 6). In response to a motion to dismiss (ECF No. 12), petitioner moved to stay the action and to file an amended habeas corpus petition. The court then appointed counsel, who filed the second amended petition. The motion to dismiss followed.

         Untimeliness

         The parties agree on three things. First, the original, proper-person habeas corpus petition (ECF No. 6) was timely filed. Second, the first amended, proper-person habeas corpus petition (ECF No. 20)[1] was not timely filed. Third, the second amended, counseled habeas corpus petition (ECF No. 34) is not timely filed. For the grounds in the second amended petition to be timely, they must relate back to the original petition. An amended habeas corpus petition "does not relate back (and thereby escape [28 U.S.C. § 2244(d)(1)'s] one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Mayle v. Felix, 545 U.S. 644, 650 (2005). Relation back is allowed "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts...." Id. at 664.

         Respondents argue that all five grounds of the second amended petition do not relate back to the original petition. The court agrees.

         Amended ground 1[2] is a claim that the evidence was insufficient to support the conviction for trafficking in a controlled substance (count 1). Respondents argue that amended ground 1 shares no common core of operative fact with any claim in the original petition. Petitioner argues that amended ground 1 relates back to original ground 3. Original ground 3 features prominently in many of petitioner's arguments for relation back, so the court reproduces it here.

         I allege that my state court conviction and/or sentence are unconstitutional, in violation of my Fourteenth Amendment right to effective counsel on appeal, based on these facts:

Petitioner Jose Irael Alvarez alleges that his convictions in counts II through V; and VIII through X is unconstitutional because the evidence is highly insufficient to sustain the convictions was prejudicial due to appellate counsel Martin Crowley failing to raise the issue of the insufficiency of the evidence thats relative to counts II through counts V and counts VIII through X. Petitioner Jose Irael Alvarez states that his appellate counsel testified at the evidentiary hearing and stated on the record that issues of the ineffectiveness on appellate counsel Martin Crowley was the statement on record "only chance" was to attack the sufficiency of count I offered by the state at petitioner's trial. Although appellate counsel raised to issues of insufficiency of the evidence of drug trafficking count because the detectives, Nevada tack force found absolutely no evidence linking petitioner with actual constructive possession of any drugs of any drugs activity on the date in question. This issue was indeed meritorious and could have made a different in petitioner's appeal proceedings. This was indeed an instance of constitutional pain error which under federal affects petitioner's substantial rights to due process. Petitioner claims has merits.

ECF No. 6, at 9. Petitioner points to the statement in original ground 3, beginning with "Although appellate counsel, " as support for his argument that amended ground 1 relates back. That statement has two problems. First, it contains no facts, only a mention that counsel had challenged the sufficiency of the evidence in a prior proceeding. Second, it contains no operative facts. Petitioner does not claim in original ground 3 that the evidence was insufficient to support the conviction for trafficking. Petitioner does claim in original ground 3 that appellate counsel was ineffective for not challenging the sufficiency of the evidence of other counts on direct appeal, because appellate counsel did challenge the sufficiency of the evidence for count 1. In other words, petitioner is using that statement as a counter-example, but die statement itself is not operative, and it contains no facts. The statement is insufficient for amended ground 1 to relate back to original ground 3.

         To the extent that petitioner argues that the exhibits attached to the original petition are part of the original petition itself, and that amended ground 1 relates back to them, the court is not persuaded. Petitioner can incorporate documents by referring to them clearly and repeatedly to satisfy the specific pleading requirement of Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts. Dye v. Hofbauer, 546 U.S. 1, 4 (2005) (per curiam). However, to incorporate a part of a document by reference, petitioner must actually refer to that document. Petitioner makes no such references in original ground 3. Whether by allegation or incorporation by reference, Rule 2(c) requires petitioner to specify all the grounds available to him and to allege the facts supporting each ground. Petitioner cannot attach documents to a petition, make vague or no reference to them, and then expect both the ...


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