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Edmisten v. Neven

United States District Court, D. Nevada

September 25, 2019

JUSTIN JAMES EDMISTEN, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Before 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.

         II. Procedural History

         In 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).

         In 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).

         At the 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).

         At the 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).

         The 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).

         Petitioner 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.

         Petitioner 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).

         Petitioner 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. 16-35).

         While 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).

         While 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 ...


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