United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE
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.
Relevant Procedural History
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.
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).
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
Grounds 1, 4(C), and 4(D) still are untimely
court already dismissed grounds 1, 4(C), and 4(D) as
untimely. No. further action need be taken on them.
Grounds 3 and 4(B) are procedurally defaulted
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 ...