Thomas v. Beneditti et al, No. 3:2009cv00455 - Document 17 (D. Nev. 2010)
Court Description: ORDER DENYING as moot 13 Motion/Application for Leave to Proceed in forma pauperis. FURTHER ORD DENYING 14 Motion for appointment of counsel. FURTHER ORDERED that grounds 2 and 3 of the amended petition (# 11 ) are DISMISSED. IT IS FURTHER ORDERE D that the clerk of the court shall send P a petition for a writ of habeas corpus form with instructions. ( Form mailed to P 7/12/2010 ) P shall have thirty (30) days from the date that this order is entered in which to file a second amended petition to correct the noted deficiencies. IT IS FURTHER ORDERED that P shall clearly title the second amended petition as such by placing the phrase "SECOND AMENDED" immediately above "Petition for a Writ of Habeas Corpus Pursuant to 28 U.S. C. § 2254" on page 1 in the caption, and P shall place the docket number, 3:09-CV-00455-HDM-(RAM), above the phrase "SECOND AMENDED." ( Second Amended Petition deadline: 8/11/2010. ) Signed by Judge Howard D. McKibben on 7/12/2010. (Copies have been distributed pursuant to the NEF - DRM)
Download PDF
<![CDATA[
Thomas v. Beneditti et al Doc. 17 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 9 EDDIE JAMES THOMAS, JR., 10 Petitioner, ORDER 11 vs. 12 JAMES BENEDETTI, et al., 13 Case No. 3:09-CV-00455-HDM-(RAM) Respondents. 14 15 Petitioner has submitted an amended petition (#11). 16 court has reviewed it pursuant to Rule 4 of the Rules Governing 17 Section 2254 Cases in the United States District Courts. 18 Petitioner must further amend the petition. 19 Ground 1 is actually two separate claims. The First, 20 petitioner alleges that he did not receive adequate notice that the 21 prosecution intended to seek adjudication of him as a habitual 22 criminal. 23 assistance by not objecting to the lack of adequate notice. 24 ineffective-assistance claim is distinct from the underlying claim 25 and should be pleaded in a separate ground. 26 Morrison, 477 U.S. 365, 373-74 & n.1 (1986). 27 28 Second, he alleges that his counsel provided ineffective The See Kimmelmann v. Also in ground 1, petitioner argues that Nev. Rev. Stat. § 34.810 is not an adequate and independent state-law reason for Dockets.Justia.com 1 denying relief. 2 first need to move to dismiss ground 1 because of procedural 3 default before this argument becomes relevant. 4 This argument is premature. Respondents would In ground 2, petitioner first alleges that the 5 prosecution did not conduct a hearing fifteen days before 6 sentencing on whether petitioner’s prior convictions were obtained 7 with the effective assistance of counsel. 8 defects. 9 method of proving the existence of prior convictions that are used This allegation has two First, the Constitution does not require a particular 10 to support a finding of habitual criminality. Dretke v. Haley, 541 11 U.S. 386, 395-96 (2004). 12 petitioner cites do not support his allegations. 13 may charge petitioner with being a habitual criminal either in the 14 criminal information or in a separate filing after conviction of 15 the primary offense. 16 then sentencing must occur no less than 15 days after the filing of 17 habitual-criminal charges. 18 is some question about the existence of the prior convictions, then 19 the state district court must conduct a hearing on the matter, but 20 nothing requires that hearing to be separate from, let alone 21 fifteen days before, the sentencing hearing. 22 § 207.016(3). 23 and amendment cannot cure the defect.1 Second, the state statutes that The prosecution If the prosecution chooses the latter method, Nev. Rev. Stat. § 207.016(2). If there See Nev. Rev. Stat. This part of ground 2 is without merit on its face, 24 25 26 27 28 1 To the extent that petitioner is claiming that he did not receive adequate notice of the intent to seek habitual-criminal adjudication, ground 2 duplicates ground 1, and the court would dismiss it for being redundant. -2- 1 Second, petitioner alleges that counsel provided 2 ineffective assistance because counsel did not raise the above- 3 discussed issue before petitioner was sentenced. 4 claiming ineffective assistance of counsel must demonstrate (1) 5 that the defense attorney’s representation “fell below an objective 6 standard of reasonableness,” Strickland v. Washington, 466 U.S. 7 668, 688 (1984), and (2) that the attorney’s deficient performance 8 prejudiced the defendant such that “there is a reasonable 9 probability that, but for counsel’s unprofessional errors, the A petitioner 10 result of the proceeding would have been different,” id. at 694. 11 “[T]here is no reason for a court deciding an ineffective 12 assistance claim to approach the inquiry in the same order or even 13 to address both components of the inquiry if the defendant makes an 14 insufficient showing on one.” 15 deficiently, because, as noted above, the statutes do not require 16 what petitioner alleges that they require. 17 Id. at 697. Counsel did not perform As with ground 1, petitioner argues that Nev. Rev. Stat. 18 § 34.810 is not an adequate and independent state-law reason for 19 denying relief. 20 dismissing ground 2 for lack of merit. 21 This argument is moot because the court is Ground 3 clarifies a vague allegation of how petitioner 22 was adjudicated to be a habitual criminal. In the original 23 petition (#4), petitioner appeared to allege that the prosecution 24 was relying upon multiple counts from one prior judgment of 25 conviction to justify treatment of petitioner as a habitual 26 criminal. 27 of conviction to be used that way. 28 227 (Nev. 1979). Nev. Rev. Stat. § 207.010 does not allow prior judgments Rezin v. State, 596 P.2d 226, Accord, Halbower v. State, 606 P.2d 536, 537 -3- 1 (Nev. 1980). The court gave petitioner leave to amend to allege 2 what one prior judgment of conviction was used in this fashion. 3 ground 3 of the amended petition (#11), the claim has changed. 4 Petitioner was convicted of five counts of statutory sexual 5 seduction. 6 a habitual criminal on all counts, with some terms running 7 concurrently and some terms running consecutively. 8 alleges that the trial court should have applied the enhanced 9 sentence as a habitual criminal to only one count of statutory The trial court imposed the enhanced sentence for being 10 sexual seduction. 11 habitual-criminal sentence for each count. 12 merit on its face. 13 In Petitioner now However, Nev. Rev. Stat. § 207.010 authorizes a Ground 3 is without Ground 4 contains multiple claims. In paragraphs 1, 5, 14 and 7 through 15, Petitioner again alleges that the prosecution 15 violated Nev. Rev. Stat. § 50.090 when witnesses testified about 16 his prior sexual conduct. 17 petitioner once that § 50.090 prohibits him from inquiring into the 18 victim’s prior sexual conduct, but the statute does not prohibit a 19 witness from testifying against petitioner about his prior sexual 20 conduct. 21 from his second amended complaint. 22 The court already has explained to Petitioner needs to omit allegations concerning § 50.090 In paragraphs 7 through 15, petitioner also argues that 23 the prosecution violated a witness’ privilege against self- 24 incrimination, guaranteed by the Fifth Amendment. 25 no standing to argue that a witness’ effort to exercise the 26 privilege against self-incrimination was in some way undermined.” 27 United States v. Ceniceros, 427 F.2d 685, 689 (9th Cir. 1970) 28 (citing Bowman v. United States, 350 F.2d 913, 915 (9th Cir. -4- “A defendant has 1 1965)). 2 privilege against self-incrimination from his second amended 3 complaint. 4 Petitioner needs to omit allegations concerning the In addition to correcting the defects noted above, 5 Petitioner needs to re-allege his other grounds in the amended 6 petition, or they will be waived. 7 567 (9th Cir. 1987). 8 9 10 11 King v. Atiyeh, 814 F.2d 565, Petitioner has submitted an application to proceed in forma pauperis (#13). The application is moot because petitioner has paid the filing fee. Petitioner has submitted a motion for appointment of 12 counsel (#14). 13 justice so require, counsel may be appointed to any financially 14 eligible person who is seeking habeas corpus relief. 15 § 3006A(a)(2)(B). 16 likelihood of success on the merits as well as the ability of the 17 petitioner to articulate his claims pro se in light of the 18 complexity of the legal issues involved.” 19 F.2d 952 (9th Cir. 1983). 20 counsel in federal habeas proceedings. 21 467, 495 (1991). 22 underlying claims, but are intrinsically enmeshed with them. 23 Weygandt, 718 F.2d at 954. 24 concludes that appointment of counsel is not warranted. 25 26 27 28 Whenever the court determines that the interests of 18 U.S.C. “[T]he district court must evaluate the Weygandt v. Look, 718 There is no constitutional right to McCleskey v. Zant, 499 U.S. The factors to consider are not separate from the After reviewing the petition, the court IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (#13) is DENIED as moot. IT IS FURTHER ORDERED that the motion for appointment of counsel (#14) is DENIED. -5- 1 2 3 IT IS FURTHER ORDERED that grounds 2 and 3 of the amended petition (#11) are DISMISSED. IT IS FURTHER ORDERED that the clerk of the court shall 4 send Petitioner a petition for a writ of habeas corpus pursuant to 5 28 U.S.C. § 2254 form with instructions. 6 thirty (30) days from the date that this order is entered in which 7 to file a second amended petition to correct the noted 8 deficiencies. 9 dismissal of grounds 1 and 4. 10 Petitioner shall have Failure to comply with this order will result in the IT IS FURTHER ORDERED that petitioner shall clearly title 11 the second amended petition as such by placing the phrase “SECOND 12 AMENDED” immediately above “Petition for a Writ of Habeas Corpus 13 Pursuant to 28 U.S.C. § 2254” on page 1 in the caption, and 14 petitioner shall place the docket number, 3:09-CV-00455-HDM-(RAM), 15 above the phrase “SECOND AMENDED.” 16 DATED: July 12, 2010. 17 18 19 ______________________________________ HOWARD D. MCKIBBEN United States District Judge 20 21 22 23 24 25 26 27 28 -6-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
