Maldanado v. Baker

          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. ...