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Voss v. Baca

United States District Court, D. Nevada

March 25, 2019

STEVEN FLOYD VOSS, Petitioner,
v.
ISIDRO BACA, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         This closed habeas matter under 28 U.S.C. § 2254 comes before the Court on Petitioner's motion for relief from judgment under Rule 60(b)(2) and (5). (ECF No. 9.) The Court previously dismissed the petition in this action as a successive petition.

         I. BACKGROUND

         Petitioner Steven Voss seeks to challenge his conviction in No. CR97-2077 in Nevada's Second Judicial District Court.[1]

         On July 8, 1998, the state district court entered an original judgment of conviction adjudging Voss guilty of “Murder With the Use of a Deadly Weapon, a violation of NRS §§ 200.010, 200.030 and 193.165, and Kidnaping in the First Degree, a violation of § NRS 200.310-1, Felonies, as charged in Counts I and II of the Indictment.” The judgment sentenced Voss to two consecutive sentences of life without the possibility of parole on Count I and life with parole eligibility after a minimum fifteen years served on Count II, to be served concurrently with the sentence imposed on Count I. The judgment further directed that the sentences on Counts I and II be served concurrently with the sentence imposed in case number CR96-1581. The judgment further stated that Voss “be given no credit for time served.” (ECF No. 29-2 (No. 3:11-cv-00223-LRH-WGC).)

         On direct appeal, the Supreme Court of Nevada reversed the weapon enhancement and vacated that sentence, affirmed the judgment of conviction in all other respects, and remanded for entry of an amended judgment. (ECF No. 18-2.)

         On July 13, 2000, the district court entered an amended judgment adjudging Voss guilty of “Murder, a violation of NRS 200.010, NRS 200.030 and NRS 193.165, a felony, and Kidnaping in the First Degree, a violation of NRS 200.310-1, Felonies as contained in Counts I and II of the Indictment.” The amended judgment further changed the sentence on Count I to “a term of life without the possibility of parole, ” i.e., deleting the like consecutive sentence on the vacated weapon enhancement. The amended judgment otherwise substantially tracked the provisions of the original judgment of conviction, with the principal exception that the amended judgment gave “credit for seven hundred thirty-six (736) days time served” as of that time. (ECF No. 18-1.)[2]

         On January 28, 2004, the district court entered a corrected amended judgment deleting the reference to “and NRS 193.165” in the text quoted above, such that it instead read in pertinent part “a violation of NRS 200.010, and NRS 200.030.” The disposition paragraph of the corrected amended judgment otherwise tracked the provisions of the earlier amended judgment. The final line of the corrected amended judgment read: “Nunc pro tunc to the 13th day of July, 2000.” (ECF No. 18-3.)

         Thereafter, Voss filed his first federal petition in No. 3:11-cv-00223-LRH-WGC. That petition was not fully exhausted, and Voss opted to voluntarily dismiss the remaining grounds in that petition without prejudice to exhaust state court remedies.

         Voss filed his second federal petition in No. 15-cv-00183-HDM-VPC. The Court dismissed that petition with prejudice as untimely.

         After the dismissal in No. 15-cv-00183, Voss filed the present action. Following a show-cause order, the Court dismissed the petition without prejudice as a successive petition, because the prior petition had been dismissed as untimely. See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (petition filed following dismissal of prior petition as untimely is successive). The order and judgment of dismissal were entered on May 8, 2018. (ECF Nos. 7, 8.)

         On or about June 20, 2018, after the expiration of the time for seeking relief under Rule 59, Voss dispatched the present Rule 60(b) motion to the Clerk for filing.

         Voss seeks Rule 60(b) relief, on the grounds discussed infra, based upon a second corrected amended judgment of conviction that was filed in the state district court on May 24, 2018. (ECF No. 9 at 13-14; ECF No. 18-4.) The state court order thus was filed subsequent to the entry of judgment in this matter on May 8, 2018.

         Voss had filed a motion to correct judgment in the state district court on or about May 3, 2018. The district court granted the motion to the extent of directing entry of the second corrected amended judgment specifying that he had been convicted specifically of first-degree murder, as reflected on ...


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