United States District Court, D. Nevada
UBALDO U. MALDANADO, Petitioner,
v.
RENEE BAKER, et al., Respondents.
ORDER
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
I.
SUMMARY
This
habeas matter under 28 U.S.C. § 2254 by petitioner
Ubaldo Urbina-Maldonado[1] comes before the Court on his
application to proceed in forma pauperis (ECF No. 1)
and motion for appointment of counsel (currently docketed at
ECF No. 1-2). As further explained below, the Court will
grant the motions.
II.
BACKGROUND
Urbina
challenges his conviction in Nevada state court, pursuant to
a jury verdict, of 11 counts of sexual assault on a child
under sixteen years of age and 2 counts of lewdness with a
child under fourteen years of age. It appears from the state
supreme court's September 10, 2009, order of affirmance
in No. 51848 in that court, [2] together with the state
corrections department's inmate locator page for Urbina,
that: (a) he is sentenced to 20 years to life on each of the
11 sexual assault counts and 10 years to life on each of the
lewdness counts; (b) the sentences on 9 of the sexual assault
counts and 1 of the lewdness counts all are running
concurrently with one another; and (c) the sentences on 2 of
the sexual assault counts and 1 of the lewdness counts each
run consecutively to all other sentences in the case,
including each other.[3]
It thus
appears that Urbina must serve a minimum of 70 years before
being eligible for a parole outside of prison walls. His
inmate locator page would suggest that he was approximately
31 years at the time that the sentences first began to run.
It therefore would appear that he would not be eligible for a
parole before reaching approximately 101 years of age. He
thus, as a practical matter, is effectively sentenced to the
equivalent of life without parole.
On
direct appeal, Urbina appears to have raised primarily only a
single claim challenging the voluntariness of his statements
admitted at trial, pursuant to Miranda v. Arizona,
384 U.S. 436 (1966). The Supreme Court of Nevada affirmed the
conviction in No. 51848 on September 10, 2009; and the time
to seek certiorari review in the United States
Supreme Court expired on December 9, 2009.
Over
three years later, on December 20, 2012, Urbina filed a state
post-conviction petition. The state district court initially
denied the petition as untimely. However, the state supreme
court, in No. 63330 in that court, reversed and remanded for
consideration of Urbina's arguments seeking to establish
good cause for the failure to file a timely petition with,
inter alia, appointment of counsel for Urbina on
remand.
It
appears from the briefing in the later appeal in No. 76736 in
the state appellate courts that the state district court held
an evidentiary hearing and again dismissed the state petition
and a second pro se petition as untimely. It appears
that the district court found, inter alia, that
Urbina did not establish that he timely requested
Spanish-language legal resources or assistance, that such
resources and assistance were unavailable to him, or that he
did not have sufficient English language ability to seek
assistance. It further appears that the state district court
denied a supplemental petition filed by appointed counsel on
the merits of the claims presented therein.
It
additionally appears that a corrected judgment of conviction
was filed during the foregoing state post-conviction
proceedings in 2015.
Briefing
on the appeal in No. 76736 has been completed and the matter
is currently pending for decision in the state appellate
courts.
Urbina
dispatched the federal petition in this matter to the Clerk
on or after May 2, 2019. It appears that the federal petition
does not include the claim exhausted on direct appeal and, at
best, includes only claims that were presented by counsel in
the state post-conviction proceedings, which have yet to be
concluded as of this review.
Urbina
asserts in his motion for appointment of counsel, inter
alia, that he “still has problems with English
language” and “[h]is English is marginal at
best.” He additionally asserts in both the motion and
within the petition that his current state post-conviction
appeal counsel has abandoned him, and has not responded to
his letters requesting his case file for him to use in
preparing a federal petition. (ECF No. 1-1 at 3; ECF No. 1-2
at 3.)
III.
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