Holmes v. Williams et al

Filing 28

ORDER Denying 26 Petitioner's Motion for Relief from Judgment. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Kent J. Dawson on 1/31/14. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROBERT HOLMES, III,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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Case No. 2:12-cv-00354-KJD-RJJ

Respondents.

ORDER

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Before the court is petitioner’s motion for relief from judgment (#26) and respondents’

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opposition (#27). Petitioner again argues that his guilty plea was invalid because the plea agreement

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stated that he was eligible for probation, but that Nev. Rev. Stat. § 205.060(2) actually barred

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probation. The statute provides, in relevant part:

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A person who is convicted of burglary and who has previously been convicted of burglary or
another crime involving the forcible entry or invasion of a dwelling must not be released on
probation or granted a suspension of sentence.

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Petitioner’s new argument is that “forcible entry” is a concept that is completely separate from

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“invasion of a dwelling.” The court directs petitioner back to the ruling of Nevada Supreme Court

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in his own case: “Appellant alleged no other facts indicating that the attempted burglary conviction

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involved the forcible entry or invasion of a dwelling.” Ex. 42, at 2. The Nevada Supreme Court

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interprets § 205.060(2) to bar probation when the person is convicted of a prior crime involving

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either forcible entry or invasion of a dwelling. The Nevada Supreme Court is the final word on

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interpretations of state law.

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Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and the
court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that petitioner’s motion for relief from judgment (#26) is
DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: January 31, 2014

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_________________________________
KENT J. DAWSON
United States District Judge

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