Barrett v. Legrand et al, No. 3:2014cv00678 - Document 36 (D. Nev. 2016)

Court Description: ORDER granting in part Respondent's 11 Motion to Dismiss (see order for details); denying Petitioner a certificate of appealability; denying as moot 30 , 33 , 34 , and 35 motions. Signed by Judge Howard D. McKibben on 3/23/2016. (Copies have been distributed pursuant to the NEF - KR)
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Barrett v. Legrand et al Doc. 36 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 KENNETH DON BARRETT, ) ) ) Petitioner, ) ) vs. ) ) WARDEN LEGRAND, et al., ) ) Respondents. ) _________________________________ ) 3:14-cv-00678-HDM-WGC ORDER 17 Before the court are the petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254 (#5), respondents’ motion to dismiss 19 (#11) 20 respondents’ reply (#28) and exhibits (#29), petitioner’s motion to 21 extend time (#30) and supplement to his response (#31), respondents’ 22 motions to strike (##33, 35), and petitioner’s motion for leave to 23 correct injustice and supplement exhibits (#34). 24 I. and exhibits (##12-20), petitioner’s response (#24), Procedural History 25 A. 26 On March 20, 1986, in the Eighth Judicial District Court of the 27 State of Nevada, petitioner was charged by information in Case No. 28 86C073673 (C73673) with burglary, robbery with the use of a deadly Conviction and Direct Appeal 1 Dockets.Justia.com 1 weapon, victim 65 years of age or older, and grand larceny auto. (Ex. 2 12). The following day, petitioner was charged by information in Case 3 No. 86C073702 (C73702) with grand larceny auto, burglary, robbery with 4 the use of a deadly weapon, and attempted murder with the use of a 5 deadly weapon. 6 motion to consolidate the two informations and try them jointly before 7 the same jury. 8 he was found guilty and convicted of all counts. (Ex. 14). The district court granted the state’s (Exs. 11 at 5, 33). The petitioner went to trial, and (Ex. 57). 9 The state filed a notice of intent to seek habitual criminal 10 enhancement and the district court adjudicated the petitioner a 11 habitual criminal. (Exs. 59, 62 (C73702), 63 (C73673)). 12 filed the judgment of conviction in C73702 on December 23, 1986. (Ex. 13 62). Defendant was sentenced to 9 years for grand larceny auto (count 14 1), 9 years plus an additional 10 for a total of 19 by virtue of being 15 a 16 consecutive 14 years on the enhancement for robbery with the use of 17 a deadly weapon (count 3), a term of 19 years plus a consecutive 19 18 years on the enhancement for attempt murder with a deadly weapon 19 (count 4). (Id.). The sentence was to run consecutive to the Arizona 20 sentence the petitioner was serving. 21 habitual criminal for burglary (count 2), 14 The court years plus a (Id.). The court filed the judgment of conviction in C73673 on December 22 30, 1986. 23 burglary (count 1), 14 years plus a consecutive 14 years on the 24 enhancement for robbery with the use of a deadly weapon, victim 65 25 years of age or older (count 2), “an additional TEN (10) years to be 26 added on for a total of NINETEEN (19) years plus NINETEEN (19) years 27 on the enhancement by virtual of being a habitual criminal,” and a 28 term of 9 years for grand larceny auto (count 3). (Ex. 63). Defendant was sentenced to a term of 9 years for 2 (Id.). The 1 sentence was to run consecutive to the Arizona sentence the petitioner 2 was serving. 3 (Id.). Petitioner filed a notice of appeal on December 31, 1986. (Ex. 4 64). 5 filed amended judgments for both C73673 and C73702 to clarify that the 6 sentences were to run consecutive to petitioner’s existing federal 7 sentence. 8 Court 9 consolidation of judgments and clarification of which statute the While the appeal was pending, the district court sua sponte (Exs. 79, 81 (C73673), 82 (C73702)). affirmed the convictions, and The Nevada Supreme remanded 10 district court used to enhance petitioner’s sentence. 11 remittitur issued on July 11, 1989. 12 the case (Ex. 83). for The (Ex. 84). On September 13, 1989, the district court filed the second 13 amended judgments of conviction. 14 In C73673, the court clarified that petitioner’s sentence for robbery 15 with use of a deadly weapon, victim over 65 had been enhanced pursuant 16 to the deadly weapon enhancement, and not pursuant to the victim 65 17 years or older or habitual criminal enhancements. 18 court clarified that the habitual criminal enhancement attached to 19 count 2 in C73702, and modified the sentence to, “NINE (9) 9 years 20 plus an additional 10 years attached by virtue of being a habitual 21 criminal for BURGLARY.” (Exs. 85 (C73673), 86 (C73702)). (Ex. 85). The (Exs. 86, 11 at 50). 22 B. 23 Petitioner filed his first state habeas petition on July 6, 1990. First State Habeas Petition 24 (Ex. 91). 25 97). 26 a motion to clarify, the court found the order was a denial for post- 27 conviction relief. 28 The court denied the petition on January 17, 1991. Petitioner did not appeal. C. First (Ex. On March 11, 1991, in response to (Ex. 11 at 17). Motion for Modification 3 and First Motion for 1 2 Correction of an Illegal Sentence On December 3, 1997, petitioner filed his first motion for 3 modification of sentence. 4 December 18, 1997. 5 (Ex. 116). The court denied the motion on (Ex. 117). Petitioner appealed.1 (Ex. 121). On December 26, 1997, petitioner filed his first motion for 6 correction of an illegal sentence. Ex. 118). 7 motion. The court denied the Petitioner appealed.2 (Exs. 120, 125). (Ex. 126). 8 The Nevada Supreme Court consolidated petitioner’s appeals of his 9 motion to correct illegal sentence and motion for modification of 10 sentence. 11 petitioner’s appeals in Case Nos. 31690, 31691, 31813. 12 The remittitur issued on May 9, 2000. On April 12, 2000, the Nevada Supreme Court dismissed (Ex. 138). (Ex. 139). 13 D. 14 On July 27, 1999, petitioner filed his second state habeas 15 petition challenging a disciplinary action that occurred while he was 16 incarcerated. 17 in part and denied in part the petition. 18 not appeal. Second State Habeas Petition (Ex. 130). On November 22, 1999, the court dismissed (Ex. 136). Petitioner did 19 E. 20 Petitioner filed a second motion for modification of sentence on Additional Documents Filed in State Court 21 May 10, 2006. 22 did not appeal. 23 On March (Ex. 140). The court denied the motion and petitioner (Ex. 143). 9, 2009, petitioner filed a third motion for 24 modification of sentence. 25 petitioner’s third motion for modification of sentence on April 20, (Ex. 144). 26 27 1 Nevada Supreme Court Case No. 31690/31691. 28 2 Nevada Supreme Court Case No. 31813. 4 The district court denied 1 2009, and denied his motion for reconsideration on July 30, 2009. 2 (Exs. 147, 155). Petitioner did not appeal. 3 On April 22, 2014, petitioner filed a second motion to correct 4 an illegal sentence, alleging that he was subject to two enhancements, 5 deadly weapon and habitual criminal. (Ex. 172). On May 14, 2014, the 6 district court orally denied the motion as to C73673, and granted in 7 part as to C73702, amending count 2 to 9 years. (Ex. 11 at 70). 8 May 23, 2014, the district court filed a third3 amended judgment of 9 conviction in C73702. (Ex. 177). On Consistent with its May 14, 2014 10 order, the court amended count 2 by removing the habitual criminal 11 enhancement and ordering that the petitioner serve no more than 9 12 years and no less than 9 years for burglary. (Id.). 13 appealed.4 Petitioner (Ex. 175). 14 On October 15, 2014, the Nevada Supreme Court affirmed the denial 15 of petitioner’s second motion to correct an illegal sentence in 16 C73673, and the partial denial of his second motion to correct an 17 illegal sentence in C73702 (consolidate Case Nos. 65850/65851). (Ex. 18 198). 19 properly corrected in C73702 and that the petitioner had failed to 20 demonstrate that his sentence in C73673 was illegal. 21 remittitur issued on November 12, 2014. The Nevada Supreme Court held that petitioner’s sentence was (Ex. 198). The (Ex. 200). 22 On October 30, 2014, the Nevada Supreme Court denied as moot 23 petitioner’s motion for leave to appear in proper person and an 24 opening brief in each appeal that were received on October 10, 2014. 25 (Ex. 199). The Nevada Supreme Court further denied petitioner 26 27 3 The judgment is incorrectly labeled the second amended judgment. 28 4 Nevada Supreme Court Case Nos. 65850/65851. 5 1 permission to file briefs on the matters. (Ex. 199). 2 F. 3 Petitioner submitted his first habeas petition on or about May Federal Proceedings 4 11, 2001. 5 convictions in C73702 and C73673, alleging, inter alia, ineffective 6 assistance of trial and appellate counsel, prosecutorial misconduct, 7 trial court error, juror misconduct, and that his sentences were 8 unconstitutional. 9 voluntarily dismiss his petition in order to apply to the Nevada (Case No. 3:01-cv-00338-ECR-VPC, #6). On January 23, 2003, He challenged his petitioner moved to 10 Pardons Board. (Id. at #39). 11 motion and dismissed the action without prejudice on January 28, 2003. 12 (Id. at #40). 13 The court granted the petitioner’s Petitioner commenced this action on December 18, 2014. (#5). 14 The petition raises two grounds for relief. 15 that the state court should have removed petitioner’s use of a deadly 16 weapon enhancement instead of the habitual criminal enhancement 17 C73673. 18 been charged with robbery with a deadly weapon, and not attempted 19 murder with a deadly weapon. 20 regarding petitioner’s sentence in C73673 are untimely. 21 also argue that the petitioner waived his rights to challenge his 22 convictions in C73673 by voluntarily dismissing his first federal 23 habeas petition. 24 2 in the petition are unexhausted. 25 II. Ground one is a claim in Ground 2 is a claim that in C73702, petitioner should have Respondents argue that any allegations Respondents Finally, respondents argue that both grounds 1 and Standards 26 A. Timeliness 27 The Antiterrorism 28 (AEDPA)imposes a and one-year Effective statute 6 of Death Penalty limitations Act habeas of 1996 corpus 1 petitions filed by state prisoners in federal court. 2 § 2244(d)(1). 3 4 5 6 7 8 9 10 11 12 13 28 U.S.C. Section 2244(d) provides, in pertinent part: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of– A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 14 State prisoners whose convictions became final prior to the 15 AEDPA’s enactment had a one-year grace period in which to file their 16 petitions. 17 1283, 1286 (9th Cir. 1997), overruled in part on other grounds by 18 Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th 19 Cir. 1998)(en banc). 20 “a judgment becomes ‘final’ in one of two ways – either by the 21 conclusion of direct review by the highest court, including the United 22 States Supreme Court, to review the judgment, or by the expiration of 23 time to seek such review.” 24 (9th Cir. 2001). 25 state’s highest court but declines to pursue a writ of certiorari with 26 the United States Supreme Court, the conviction becomes final upon the 27 expiration of time to file a petition for writ of certiorari. 28 Jimenez v. Quarteman, 555 U.S. 113, 119 (2009). Calderon v. United States Dist. Ct. (Beeler), 128 F.3d For purposes of the AEDPA limitations period, Wixom v. Washington, 264 F.3d 894, 897 When a petitioner pursues a direct appeal to the 7 See Thus, absent tolling 1 or delayed accrual, state prisoners whose convictions became final 2 prior to April 24, 1996, had until April 24, 1997, to file their 3 federal habeas petitions. 4 46 (9th Cir. 2001). 5 Patterson v. Stewart, 251 F.3d 1243, 1245- The one-year time limitation is tolled either equitably or during 6 the 7 judgment or claim at issue. 8 Florida, 560 U.S. 631, 645 (2010). Equitable tolling is available “if 9 extraordinary circumstances beyond a pendency of properly filed state petitions challenging the 28 U.S.C. § 2244(d)(2); Holland v. prisoner’s control make it 10 impossible to file a petition on time.” 11 Generally, a litigant seeking equitable tolling bears the burden of 12 establishing two elements: (1) that he has been pursuing his rights 13 diligently, and (2) that some extraordinary circumstance stood in his 14 way.” 15 state post-conviction petition is not “properly filed” and does not 16 toll the period of limitation. Duncan v. Walker, 533 U.S. 167, 181-82 17 (2001). 18 B. 19 It is well established that exhaustion is required before a 20 federal court may consider the petition for a writ of habeas corpus. 21 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner 22 must that 23 describing the operative facts and legal theory, and give that court 24 the opportunity to address and resolve the ground. 25 Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 26 (1982). 27 Appeals for the Ninth Circuit have held exhaustion requires petitioner 28 to present squarely and clearly in his brief the issues that he wanted Beeler, 128 F.3d at 1288. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). An untimely Exhaustion fairly present ground to the state’s highest court, See Duncan v. Both the Supreme Court of the United States and the Court of 8 1 considered in his appeal. 2 1000 (9th Cir. 2005) (citing Baldwin v. Reese, 541 U.S. 27, 31-32 3 (2004)). 4 procedural context in which its merits will not be considered absent 5 special circumstances does not constitute fair presentation.” Roettgen 6 v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. 7 Peoples, 489 U.S. 346, 351(1989)). Castillo v. McFadden, 399 F.3d 993, 999- “Submitting a new claim to the state’s highest court in a 8 “[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 9 exhausts available state remedies only if he characterized the claims 10 he raised in state proceedings specifically as federal claims. 11 short, the petitioner must have either referenced specific provisions 12 of the federal constitution or statutes or cited to federal case law.” 13 Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in 14 original), amended, 247 F.3d 904 (9th Cir. 2001). 15 case law that applies federal constitutional principles will also 16 suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en 17 banc). 18 error is insufficient to establish exhaustion. 19 appeals to broad constitutional principles, such as due process, equal 20 protection, and the right to a fair trial, are insufficient to 21 establish exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 22 1999) (citations omitted). 23 III. Analysis 24 A. 25 Ground 1 is a claim that the 5th, 6th, 8th, and 14th Amendments 26 were violated because the state court should have removed his use of 27 a deadly weapon enhancement in C73673 instead of the habitual criminal 28 enhancement pursuant to the rule of lenity. In Citation to state “The mere similarity between a claim of state and federal Moreover, general Ground 1 9 (#5 at 4-5). Petitioner 1 alleges that the state court imposed consecutive sentences as to all 2 of his convictions and that the district court failed to correct his 3 illegal sentences. 4 that the habitual criminal enhancement was improper, but that the 5 state court failed to correct the judgment. (Id.). Petitioner alleges that the state agreed (Id.). 6 In case C73673, the last judgment was filed on September 13, 7 1989, when the state district court entered a second amended judgment 8 of conviction. 9 final prior to the enactment of the AEDPA. (Ex. 85). As such, the conviction in C73673 became See Jimenez, 555 U.S. at 10 119. 11 federal habeas corpus petition, unless the limitations period was 12 otherwise tolled. 13 corpus petition to this court on December 23, 2014, more than fifteen 14 years after the federal limitation period expired. 15 petition is therefore untimely as to any challenges to petitioner’s 16 sentence in C73673. Therefore, petitioner had until April 24, 1997, to file a Petitioner mailed in his current federal habeas (#1). The 17 Petitioner contends in response to the motion to dismiss that his 18 third amended judgment in case C73702 restarts the AEDPA one-year 19 statute of limitations period for both cases C73702 and C73673. 20 at 12-13). 21 judgements, and, therefore, the filing of third amended judgment in 22 C73702 does not alter the limitation period for filing his habeas 23 petition in C73673. 24 “extraordinary circumstances” exist in this case to provide a basis 25 for equitable tolling of the federal limitation period. (#24 However, the two judgments are separate and independent Additionally, petitioner fails to show that any 26 To the extent that the petitioner challenges his sentence in 27 C73702, respondents correctly argue that petitioner did not raise this 28 claim with the Nevada Supreme Court in either his direct appeal, his 10 1 first modification of sentence, his first motion for correction of an 2 illegal sentence, or his second motion to correct an illegal sentence. 3 Ground 1 is therefore time barred as to C73673 and unexhausted as to 4 C73702. 5 B. 6 Ground 2 is a claim that the 5th, 6th, and 14th Amendments were 7 violated because it was not the legislative intent to separately 8 punish multiple acts that occur close in time and constitute one 9 course Ground 2 of criminal conduct. The petitioner alleges that the 10 enhancement for use of a deadly weapon should not apply for both 11 robbery and attempted murder. 12 case C73702 he should have only been charged with robbery with a 13 deadly weapon, and not attempted murder with a deadly weapon, since 14 the robbery and attemptted murder were part of the same course of 15 criminal conduct. Thus, the petitioner alleges that in 16 The court concludes that the petitioner did not raise this claim 17 with the Nevada Supreme Court in either his direct appeal, his first 18 modification of sentence, his first motion for correction of an 19 illegal sentence, or his second motion to correct an illegal sentence. 20 Petition argues instead that both grounds have been exhausted as he 21 filed an opening brief in the Nevada Supreme Court on October 10, 22 2014. 23 petitioner’s motion as moot on October 30, 2014, and, therefore, did 24 not consider the motions on the merits. 25 exhaust ground two in case C73702. 26 IV. 27 28 (#24 at 24). However, the Nevada Supreme Court denied Thus, petitioner failed to See Castille, 489 U.S. at 351. Certificate of Appealability In order to proceed with an appeal from this court, petitioner must receive a certificate of appealability. 11 28 U.S.C. § 2253(c)(1); 1 Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3f 946, 2 950-51 (9th Cir. 2006). 3 substantial showing of the denial of a constitutional right” to 4 warrant a certificate of appealability. 28 U.S.C. § 2253(c)(2); Slack 5 v. McDaniel, 529 U.S. 473, 483-84 (2000). 6 inquiry,” 7 debatable among jurists of reason; that a court could resolve the 8 issues [in a different manner]; or that the quests are adequate to 9 deserve encouragement to proceed further.” the petitioner Generally, a petitioner must make “a “must To make this “threshold demonstrate that the issues are Lambright v. Stewart, 220 10 F.3d 1022, 1024-25 (9th Cir. 2000) (first quoting Slack, 529 U.S. at 11 485; then quoting Barefoot v. Estelle, 468 U.S. 880, 893 n. 4 (1983)). 12 This court has considered the issues raised by petitioner, with 13 respect to whether they satisfy the standard for issuance of a 14 certificate of appealability, and determines that none meet that 15 standard. 16 appealability. 17 The court will therefore deny petitioner a certificate of IT IS THEREFORE ORDERED that respondent’s motion to dismiss (#11) 18 is GRANTED in part. 19 to the extent it challenges his sentence in C73673 and DISMISSED 20 WITHOUT PREJUDICE to the extent it challenges his sentence in C73702 21 as 22 petitioner’s failure to exhaust his available remedies in state court. 23 The clerk of the court shall enter judgment accordingly. 24 unexhausted. Ground 1 is DISMISSED WITH PREJUDICE as untimely Ground 2 is DISMISSED WITHOUT PREJUDICE for IT IS FURTHER ORDERED that petitioner is DENIED a certificate of 25 appealability. 26 . . . 27 . . . 28 . . . 12 1 IT IS FURTHER ORDERED that petitioner’s motion to extend time 2 (#30), respondents’ motions to strike (##33, 35), and petitioner’s 3 motion for leave to correct injustice and supplement exhibits (#34) 4 are DENIED as moot. 5 DATED: This 23rd day of March, 2016. 6 7 ____________________________ UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13