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Silva v. Williams

United States District Court, D. Nevada

August 21, 2019

JOSE E. SILVA, Petitioner,
v.
BRIAN WILLIAMS, et al., Respondents.

          ORDER (ECF NO. 26)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Petitioner Jose E. Silva, a Nevada prisoner represented by counsel, has filed this habeas corpus proceeding under 28 U.S.C. § 2254. The respondents have moved to dismiss the petition. ECF No. 26. Silva has opposed, and Respondents have replied. ECF Nos. 34, 36. I grant the motion in part. Background[1]

         State Proceedings

         Silva challenges a conviction imposed by the state district court for Clark County, Nevada (“state court”). In May 2009, he was initially charged with multiple financial crimes as well as burglary and theft. ECF No. 9-6. Following a two-day trial in September 2010, a jury found Silva guilty of the following charges: four counts of burglary; two counts of theft; three counts of fraudulent use of credit or debit card; one count of possession of credit or debit card without cardholder's consent; one count of attempted theft; and one count of attempted fraudulent use of credit or debit card. ECF Nos. 9-34. The state court entered a judgment of conviction on February 14, 2011. ECF No. 9-50.

         Silva appealed. On direct appeal, he argued (1) the state court erred by allowing him to proceed pro se because the court conducted an inadequate canvass under Faretta v. California, 422 U.S. 806 (1975), and failed to inquire whether he understood available defenses to his crimes, violating his right to counsel and a fair trial; and (2) the state court failed to properly exercise its statutory discretion in sentencing Silva as a habitual criminal because three of the felonies supporting the enhancement were remote and he posed no threat to society. ECF No. 9-60. The Supreme Court of Nevada affirmed the convictions in September 2012. ECF No. 9-63. Silva sought rehearing and en banc consideration, which was denied on December 19, 2012. ECF Nos. 9-64, 9-66, 9-67. Remittitur issued the following month. ECF No. 9-68.

         Silva filed a pro se state post-conviction petition for habeas corpus relief on December 4, 2013. ECF No. 9-73. He later filed a counseled supplement to his state petition. ECF No. 9-77. The state court denied the petition in May 2016. ECF No. 9-80. Silva appealed. He filed a counseled opening brief raising one issue: whether he received effective assistance of counsel on direct appeal because appellate counsel failed to challenge the state court's denial of a suppression motion. ECF No. 9-84 at 21, 25-37. The Nevada Court of Appeals affirmed the state court's ruling, and remittitur issued on September 12, 2017. ECF Nos. 9-86, 9-87.

         Federal Habeas Proceedings

         On August 7, 2017, Silva initiated this federal habeas corpus proceeding pro se and requested permission to proceed in forma pauperis. ECF No. 1. Chief Judge Navarro found that Silva was able to pay the $5.00 filing fee and allowed 30 days for him to do so. ECF No. 4. He timely paid the filing fee so his original pro se Petition for Writ of Habeas Corpus (ECF No. 8) (“original petition”) was filed on the docket.

         On December 27, 2017, Chief Judge Navarro provisionally appointed the Federal Public Defender (“FPD”) as Silva's counsel. ECF No. 7. The FPD promptly requested leave to file an amended petition as well as a special scheduling order, which were granted. ECF Nos. 9, 10, 12 (granting permission to use a bifurcated amendment procedure, which authorized Silva to file a second amended petition once counsel had a full opportunity to investigate all potential claims). The First Amended Petition (ECF No. 13) was filed on December 29, 2017.

         On September 21, 2018, Silva filed a counseled Second Amended Petition (ECF No. 19), alleging two grounds for relief:

         Ground 1: Silva's right to counsel and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments were violated when the state court allowed Silva to proceed pro se.

         Ground 2: Silva's right to the effective assistance of appellate counsel as guaranteed by the Sixth and Fourteenth Amendments was violated when appellate counsel failed to appeal the state court's denial of Silva's motion to suppress the unlawful search of his hotel room.

         The respondents now move to dismiss the second amended petition as untimely or unexhausted.

         Ground 1 Does Not Relate Back to the Original Petition

          A. ...


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