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Rosales v. Byrne

United States District Court, D. Nevada

March 27, 2018

GARY CRAIG ROSALES, Petitioner,
v.
Q. BYRNE, et al., Respondents.

          ORDER

          ROBERT C. JONES United State District Judge

         Before the court are the amended petition for a writ of habeas corpus (ECF No. 15), respondents' motion to dismiss (ECF No. 25), petitioner's opposition (ECF No. 26), and respondents' reply (ECF No. 29). Also before the court are respondents' supplemental authorities (ECF No. 32), petitioner's response (ECF No. 35), and respondents' reply (ECF No. 36). The court finds that petitioner has not exhausted his state-court remedies for all of his grounds for relief, and the court grants in part the motion to dismiss.

         Procedural History

          Pursuant to a no-contest plea agreement, petitioner was convicted of five counts of discharging a firearm at or into an occupied structure and one count of aggravated stalking. Ex. 41 (ECF No. 17-15). Petitioner appealed. The Nevada Supreme Court reversed and remanded, holding that the state district court's involvement in the plea negotiations was improperly coercive. Ex. 52 (ECF No. 17-26).

         Petitioner then went back to the state district court, with a different attorney and a different judge. After a jury trial, petitioner was convicted of seven counts of discharging a firearm at or into an occupied structure, one count of aggravated stalking, one count of attempted murder with the use of a deadly weapon, and one count of criminal anarchy. Ex. 95 (ECF No. 18-39). Petitioner appealed. On February 27, 2012, the Nevada Supreme Court affirmed in part and reversed in part. It held that the evidence was not sufficient to support the conviction for criminal anarchy, and it affirmed all the other convictions. Ex. 113 (ECF No. 19-12). The state district court entered an amended judgment of conviction on April 5, 2012. Ex. 116 (ECF No. 19-15).

         On June 7, 2012, petitioner filed in the state district court a post-conviction habeas corpus petition. Ex. 117 (ECF No. 19-16). The state district court denied the petition in a written order filed on September 8, 2014. Ex. 132 (ECF No. 19-29). The state district court issued a notice of entry of that order on October 6, 2014. Ex. 133 (ECF No. 19-30). Petitioner appealed. The Nevada Supreme Court affirmed on October 15, 2015. Ex. 138 (ECF No. 19-35). Remittitur issued on November 9, 2015. Ex. 140 (ECF No. 19-37).

         On December 8, 2016, petitioner filed a motion for sentencing reconsideration in the state district court. Ex. 141 (ECF No. 19-38). The state district court denied the motion on December 23, 2015. Ex. 144 (ECF No. 19-41).

         Petitioner then mailed a proper-person habeas corpus petition pursuant to 28 U.S.C. § 2254 (ECF No. 6) to this court on December 29, 2015.[1] The court appointed counsel to represent petitioner. Petitioner filed his amended petition (ECF No. 15) on October 28, 2016.

         Timeliness

         A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a Serson in custody pursuant to the judgment of a State court. The limitation period shall run om the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which tne constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the ...

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