United States District Court, D. Nevada
JOSE E. SILVA, Petitioner,
BRIAN WILLIAMS, et al., Respondents.
ORDER (ECF NO. 26)
P. GORDON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
September 21, 2018, Silva filed a counseled Second Amended
Petition (ECF No. 19), alleging two grounds for relief:
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
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.
respondents now move to dismiss the second amended petition
as untimely or unexhausted.
1 Does Not Relate Back to the Original Petition