Kevin D. Sutton VS Craig Farewell
Filing
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ORDER denying Petitioner's ECF No. 47 Motion for Relief from Judgment; denying a certificate of appealability. Signed by Judge Howard D. McKibben on 3/21/2017. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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KEVIN D. SUTTON,
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Petitioner,
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vs.
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Case No. 3:04-cv-00498-HDM-RAM
CRAIG FARWELL, et al.,
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ORDER
Respondents.
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Before the court are petitioner’s motion for relief from judgment (ECF No. 47), respondents’
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opposition (ECF No. 50), and petitioner’s reply (ECF No. 53). The court denies petitioner’s motion.
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Petitioner’s argument is based upon the procedural history of his state post-conviction
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habeas corpus petition. Petitioner filed an initial, proper-person petition and a supporting
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memorandum. Ex. 71 (ECF No. 13, at 23), Ex. 72 (ECF No. 13, at 44). These documents
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contained what became grounds 1 through 11 in the federal habeas corpus petition (ECF No. 7).
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The state district court appointed counsel. Counsel filed a supplemental petition that contained
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what became grounds 12 and 13 in the federal habeas corpus petition. Ex. 81 (ECF No. 13, at 116).
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The state district court denied the petition, but the state district court addressed only the grounds
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raised in the supplemental petition. Ex. 86 (ECF No. 13, at 191). Petitioner appealed, but he raised
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only the grounds that were raised in his supplemental petition. Ex. 94 (ECF No. 13, at 223).
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Petitioner then commenced this action. The petition for a writ of habeas corpus (ECF No. 7)
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contained 13 grounds. Respondents moved to dismiss because grounds 1 through 11 were not
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exhausted under 28 U.S.C. § 2254(b). Specifically, respondents argued that petitioner never
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presented the issues in grounds 1 through 11 to the Nevada Supreme Court on either direct appeal or
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on appeal from the denial of the post-conviction habeas corpus petition. ECF No. 11, at 5.
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Petitioner agreed, and he asked to dismiss grounds 1 through 11. ECF No. 17, at 2. The court
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granted the motion to dismiss and dismissed grounds 1 through 11. ECF No. 20. Litigation on the
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remaining two grounds proceeded, and the court denied those two grounds on their merits. ECF No.
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28. Petitioner appealed, and the Nevada Supreme Court affirmed. ECF No. 42.
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Petitioner now argues that respondents committed a fraud upon the court and petitioner
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when they argued that grounds 1 through 11 were not exhausted. Respondents, petitioner argues,
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stated incorrectly that state post-conviction counsel filed an amended petition, which would have
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waived any ground that was not re-alleged. Instead, counsel filed a supplemental petition, which
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added to but did not supplant the grounds in the original petition. Consequently, petitioner argues,
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grounds 1 through 11 are still pending in the state district court, and this court should reopen the
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action to decide those grounds on the merits.
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Petitioner’s motion is untimely. He must file a motion for relief from the judgment based
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upon fraud of the opposing party within one year of the finality of the judgment. Fed. R. Civ. P.
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60(c)(1). The court entered judgment on May 9, 2006. Petitioner filed his motion for relief from
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the judgment on August 8, 2016, more than 10 years after entry of the judgment, and more than 9
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years after expiration of the period to file a motion for relief from the judgment.
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Furthermore, respondents did not mislead the court. For the purposes of the exhaustion
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requirement of 28 U.S.C. § 2254(b), it does not matter whether the state district court resolved a
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ground. A ground is not exhausted unless petitioner presents it on appeal to the Nevada Supreme
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Court. Respondents made no statement in the motion to dismiss about how the state district court
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treated what became grounds 1 through 11 of the federal habeas corpus petition. Respondents’ sole,
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and correct argument was that petitioner presented to the Nevada Supreme Court only the two
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claims that became grounds 12 and 13 of the federal habeas corpus petition.
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Reasonable jurists would not find the court’s conclusions to be debatable or wrong, and the
court will not issue a certificate of appealability.
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IT IS THEREFORE ORDERED that petitioner’s motion for relief from judgment (ECF No.
47) is DENIED.
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
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DATED: March 21, 2017.
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_________________________________
HOWARD D. MCKIBBEN
United States District Judge
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