United States District Court, D. Nevada
D. MCKIBBEN UNITED STATES DISTRICT JUDGE
the court are the petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 8) and
respondents' motion to dismiss (ECF No. 10). Petitioner
has not responded to the motion to dismiss, and thus he
consents to the court granting it. LR 7-2(d). The court
agrees with respondents that, of the two remaining grounds in
the petition, one is procedurally defaulted and one is not
exhausted. The court grants the motion to dismiss.
jury trial in state district court, petitioner was convicted
of one count of robbery. Ex. 24 (ECF No. 11-24). Petitioner
appealed. The Nevada Supreme Court affirmed on June 12, 2013.
Ex. 51 (ECF No. 12-10). Remittitur issued on July 8, 2013.
Ex. 56 (ECF No. 12-15).
filed his first state post-conviction habeas corpus petition
on April 5, 2013. He asked for additional presentence
credits. Ex. 49 (ECF No. 12-8). The state district court
denied the petition. Ex. 50 (ECF No. 12-9). Petitioner
appealed, and the Nevada Supreme Court affirmed. Ex. 66 (ECF
filed his second state post-conviction habeas corpus petition
on June 19, 2014. Ex. 72 (ECF No. 12-31). Respondents moved
to dismiss the petition as untimely under Nev. Rev. Stat.
§ 34.726(1) and as successive under Nev. Rev. Stat.
§ 34.810. Ex. 77 (ECF No. 12-36). The state district
court rejected respondents' arguments. First, the state
district court determined that the first petition was a
challenge to computation of time under Nev. Rev. Stat. §
34.720, and that a petition challenging the computation of
time does not count as a first petition for the purposes of
the successive petition bar of Nev. Rev. Stat. § 34.810.
Ex. 80, at 2-3 (ECF No. 12-39, at 3-4). Second, the state
district court determined that the petition was timely
because petitioner filed it within one year of the issuance
of remittitur on direct appeal. Id. at 3 (ECF No.
12-39, at 4) (citing Nev. Rev. Stat. § 34.726(1)). The
state district court also dismissed six of the eight grounds
for relief and appointed counsel to supplement the remaining
two grounds for relief. Id. at 3-7 (ECF No. 12-39,
at 4-8). Counsel filed a supplemental petition. Ex. 109 (ECF
No. 13-28). The state district court held an evidentiary
hearing. Ex. 123 (ECF No. 14-2). The state district court
then denied the supplemental petition. Ex. 126 (ECF No.
14-5), Ex. 129 (ECF No. 14-8) (amended order).
appealed. The Nevada Court of Appeals held that the state
district court erred in not dismissing the petition as
successive and abusive of the writ under Nev. Rev. Stat.
§ 34.810. Ex. 148, at 2 (ECF No. 14-27, at 3) (citing
Griffin v. State, 137 P.3d 1165, 1166 (Nev.
2006). The Nevada Court of Appeals also noted
that petitioner did not attempt to demonstrate good cause to
excuse the procedural bar. Id.
then commenced this action. The court dismissed grounds 1, 2,
and 3 of the petition because they plainly lacked merit. The
court directed respondents to file a response, and they filed
the motion to dismiss.
first claim that ground 5 is procedurally defaulted. 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 failure
to consider the claims will result in a fundamental
miscarriage of justice.
Id. at 750; see also Murray v.
Carrier, 477 U.S. 478, 485 (1986). The ground for
dismissal upon which the Nevada Court of Appeals relied in
this case is an adequate and independent state rule. Vang
v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003) (Nev.
Rev. Stat. § 34.810).
court agrees with respondents. Ground 5 is a claim that trial
counsel provided ineffective assistance because trial counsel
did not investigate and obtain video surveillance recordings
of the area where petitioner was accused of committing
robbery. Petitioner raised this claim in his supplemental
second state petition. Ex. 109, at 8-10 (ECF No. 13-28, at
9-11). This claim also was the sole issue on appeal from the
denial of the second state petition. Ex. 140 (ECF No. 14-19).
The Nevada Court of Appeals ruled that the state district