Cooper v. State of Nevada et al

Filing 8

ORDER that Petitioner's 6 petition for writ of habeas corpus is DISMISSED with prejudice as untimely. The Clerk shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Chief Judge Gloria M. Navarro on 12/13/2018. (Copies have been distributed pursuant to the NEF - SLD) (Main Document 8 replaced to correct document number re petition on 12/14/2018) (SLD).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SAMUEL G. COOPER,

Case No. 2:18-cv-00124-GMN-VCF
Petitioner,

ORDER

v.

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STATE OF NEVADA,
Respondent.

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On April 18, 2018, this court entered an order directing petitioner Cooper to show

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cause why his federal habeas petition under 28 U.S.C. § 2254 should not be dismissed

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as untimely. ECF No. 5. In that order, the court noted that the conviction and sentence

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Cooper seeks to challenge was entered in 1987.

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established

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a one-year statute of limitations on the filing of federal habeas corpus petitions. 28

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U.S.C. § 2244(d)(1). For petitioners like Cooper, whose convictions became final before

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the passage of the AEDPA, the one-year limitations period began running on April 25,

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1996, the day after the statute's effective date, and expired on April 24, 1997, unless it

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was tolled. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

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In his response to the order to show cause, Cooper appears to be arguing that

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the holdings in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and Welch v. U.S., 136

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S. Ct. 1257 (2016), allow him to proceed with his current petition. Cooper contends that

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the Kazalyn instruction 1 used at his trial has been ruled unconstitutional and

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The instruction was so named because its use was condoned by the Nevada Supreme Court in Kazalyn v. State,
825 P.2d 578, 582 (Nev. 1992). In Byford v. State, 994 P.2d 700, 713 (Nev. 2000), the Nevada Supreme Court
concluded that the Kazalyn instruction “blur[red] the distinction between first-and second-degree murder” by not
sufficiently distinguishing between the distinct elements of deliberation and premeditation.

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Montgomery and Welch require that ruling to be applied retroactively to his case. This

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argument is without merit.
In Nika v. State, 198 P.3d 839, 848–850 (Nev. 2008), the Supreme Court of

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Nevada held that Byford announced a change in state law that applies to cases that

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were not final when Byford was decided in 2000. Cooper cannot benefit from

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Nika/Byford, nor were his constitutional rights violated by use of the Kazalyn instruction,

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because, by his own admission, his conviction was final in 1989. ECF No. 2.

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Consequently, there is no applicable rule of constitutional law to be retroactively applied

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under Montgomery or Welch.
In addition, Cooper also asks this court to issue a stay while he seeks permission

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from the court of appeals to file a successive habeas petition under 28 U.S.C. §

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2244(b). It is not clear from the record, however, that Cooper has previously filed a

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federal habeas action, thereby making this “a second or successive habeas

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application.” 2 Moreover, if this is, in fact, a second or successive habeas action, this

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court is without jurisdiction to maintain this proceeding prior to receiving authorization

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from the court of appeals. See Burton v. Stewart, 549 U.S. 147, 153 (2007).
Because Cooper has failed to show cause for failing to file his petition within the

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one-year period under 28 U.S.C. § 2244(d)(1), this action will be dismissed as untimely.

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IT IS THEREFORE ORDERED that Cooper’s petition for writ of habeas corpus

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(ECF No. 6) is DISMISSED with prejudice as untimely. The Clerk shall enter

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judgment accordingly.

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

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December
DATED THIS ___ day of __________, 2018.

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UNITED STATES DISTRICT JUDGE

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No such proceeding appears on this court’s electronic docket. And, while Cooper represented to the court in his
habeas petition that this is not his first federal habeas petition, he erroneously lists a state court proceeding as his
prior “federal” habeas case. ECF No. 6, p. 2.

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