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Ross v. Baker

United States District Court, D. Nevada

September 12, 2019

RONALD ROSS, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE

         I. Introduction

         Before the court are the second amended petition for writ of habeas corpus (ECF No. 62), respondents' motion to dismiss (ECF No. 68), petitioner's opposition (ECF No. 71), and respondents' reply (ECF No. 72). The court finds that petitioner has procedurally defaulted grounds 3 and 4(B) of the second amended petition, without excuse, and the court grants the motion to dismiss.

         II. Relevant Procedural History

         Previously, the court found that grounds 1, 4(C), and 4(D) of the first amended petition were untimely, and the court dismissed those grounds. The court also found that petitioner had not exhausted his state-court remedies for grounds 3 and 4(B) of the first amended petition. ECF No. 47. The court stayed the action while petitioner exhausted grounds 3 and 4(B). ECF No. 56.

         Petitioner filed another post-conviction habeas corpus petition in the state district court. Ex. 172 (ECF No. 60-2). The state district court found that the petition was untimely under Nev. Rev. Stat. § 34.726, barred by laches under Nev. Rev. Stat. § 34.800, and successive under Nev. Rev. Stat. § 34.810. Ex. 177 (ECF No. 60-7). Petitioner appealed. Ex. 179 (ECF No. 60-9). The Nevada Court of Appeals affirmed the state district court's decision for the same reasons. Ex. 184 (ECF No. 60-14).

         The court then reopened this action. ECF No. 61. Petitioner filed the second amended petition, which alleges the same grounds as the first amended petition. ECF No. 38, ECF No. 62. Respondents then filed their current motion to dismiss. ECF No. 68.

         III. Discussion

         A. Grounds 1, 4(C), and 4(D) still are untimely

         The court already dismissed grounds 1, 4(C), and 4(D) as untimely. No. further action need be taken on them.

         B. Grounds 3 and 4(B) are procedurally defaulted

         1.Legal standard

         A federal court will not review a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a state-law ground that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that ...

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