United States District Court, D. Nevada
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.
the Court are the First Amended Petition for Writ of Habeas
Corpus (ECF No. 41), Respondents’ Motion to Dismiss
(ECF No. 48), Petitioner’s Opposition (ECF No. 57), and
Respondents’ Reply (ECF No. 60). The Court finds that
Petitioner’s plea of guilty has partially barred Ground
2 from review, and the Court finds that Petitioner has not
exhausted his state-court remedies for the remaining
arguments under Ground 2. The Court thus grants the Motion to
Dismiss in part.
Justice Court No. 13F08977X, Petitioner was charged by
complaint with one count of burglary, two counts of robbery
with the use of a deadly weapon, and one count of obstructing
a police officer. This case concerned a robbery at a
Walgreens drug store. P. Ex. 3 (ECF No. 42-3).
Justice Court No. 13F09062X, Petitioner was charged by
complaint with one count of robbery with the use of a deadly
weapon. This case concerned the robbery of a tourist. P. Ex.
6 (ECF No. 42-6).
time of the preliminary hearing in the Walgreens case, the
prosecution was not ready. The prosecution wanted to
consolidate the Walgreens case with the tourist case, and the
witness in the tourist case was out of state. The Justice
Court denied the prosecution's request. P. Ex. 7 (ECF No.
42-7). The Justice Court also dismissed the Walgreens case.
P. Ex. 8 (ECF No. 42-8).
time of the preliminary hearing in the tourist case, the
prosecution moved to continue. The defense objected, arguing
that this was a pretext to keep Petitioner in custody while
the prosecution took both cases to the grand jury. The
Justice Court denied Petitioner's request for release on
his own recognizance but dismissed the tourist case. P. Ex. 4
(ECF No. 42-4).
prosecution then took both cases to the Grand Jury. The Grand
Jury returned an indictment for three counts of robbery with
the use of a deadly weapon, one count of burglary while in
possession of a firearm, and one count of resisting a public
officer with the use of a firearm. R. Ex. 3 (ECF No. 15-3).
An amended indictment maintained the first four counts and
dropped the count of resisting a public officer with the use
of a firearm. R. Ex. 7 (ECF No. 15-7).
then agreed to plead guilty to one count of robbery, without
any deadly-weapon enhancement. R. Ex. 21 (ECF No. 15-21). The
trial court sentenced Petitioner to a minimum term of two
years, a maximum term of five years, suspended the sentence,
placed Petitioner on probation for a term not to exceed five
years, and imposed other conditions. R. Ex. 29 (ECF No.
15-29). Petitioner did not appeal the judgment of conviction.
filed a motion to withdraw his guilty plea. R. Ex. 39 (ECF
No. 15-39). The state district court denied the motion under
then-existing case law that the appropriate remedy was
through a habeas corpus petition. R. Ex. 47 (ECF No. 16-3).
then filed his first post-conviction habeas corpus petition
and supporting affidavit in the state district court. R. Ex.
49 (ECF No. 16-5). The state district court denied the
petition. R. Ex. 65 (ECF No. 16-21). Petitioner appealed, and
the Nevada Court of Appeals affirmed. R. Ex. 79 (ECF No.
the appeal from the denial of the first state habeas corpus
petition was pending, Petitioner filed a motion to correct an
illegal sentence in the state district court. R. Ex. 72 (ECF
No. 16-28). The state district court construed the motion as
a second state habeas corpus petition, because
Petitioner's claims fell outside the limited scope of a
motion to correct an illegal sentence. R. Ex. 84 (ECF No.
16-40). The state district court then dismissed the second
state petition as successive in violation of Nev. Rev. Stat.
§ 34.810. Id. Petitioner appealed, and the
Nevada Court of Appeals affirmed. Ex. 89 (ECF No. 27-1).
the post-conviction proceedings were pending, the state
district court entered two amended judgments of conviction.
The first amended judgment of conviction noted that
Petitioner had violated his probation and set forth new
conditions of probation. R. Ex. 64 (ECF No. 16-20). The
second amended judgment of conviction revoked
Petitioner's probation and imposed a ...