O'Keefe v. LeGrand

Filing 23

ORDER denying 17 Motion for Certificate of Appealability re 18 Notice of Appeal (NEF sent to the USCA, Ninth Circuit); denying 19 Motion to Reconsider. Signed by Judge Robert C. Jones on 4/30/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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______________________________________
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BRIAN KERRY O’KEEFE,
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Petitioner,
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vs.
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ROBERT LEGRAND et al.,
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Respondents.
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3:14-cv-00477-RCJ-VPC
ORDER

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Petitioner Brian O’Keefe is a prisoner in the custody of the State of Nevada pursuant to

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conviction in a court of that state. In 2011, he filed a petition for a writ of habeas corpus under

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28 U.S.C. § 2241 in this District based upon his argument that his impending retrial would

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violate the Double Jeopardy Clause of the Fifth Amendment. Judge Mahan dismissed that

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petition without prejudice for failure to exhaust state remedies, and the Court of Appeals

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dismissed the appeal as moot when Petitioner was retried before the appeal could be heard,

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noting that the relief sought (an injunction against the impending retrial) had become

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unobtainable and that Petitioner would have to litigate any claims of error at the retrial through

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the state and then federal courts.

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Petitioner was convicted at his retrial, and the Nevada Supreme Court has denied his

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direct appeal. Petitioner filed the present § 2254 habeas corpus Petition, and the Court dismissed

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it, as amended, for failure to exhaust state remedies, noting that Petitioner wrote in his Amended

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Petition that he had been convicted on August 28, 2014.
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Petitioner has asked the Court to reconsider, noting that he in fact was convicted at his

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retrial on August 28, 2012, and that he mistakenly wrote “2014” in the Amended Petition. The

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Court accepts this explanation, but it does not change the result. Petitioner was convicted on

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August 28, 2012, and his direct appeal was denied on April 10, 2013 in Case No. 61631.

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However, Petitioner has not plausibly alleged exhaustion of state remedies, and the public

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records of the Nevada Supreme Court indicate that he has not exhausted his state remedies.

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Petitioner claims he filed for post-conviction relief on January 27, 2014, and that his appeal was

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denied on July 23, 2014. But the Amended Petition and the record of Case No. 65217 in the

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Nevada Supreme Court make clear that Petitioner filed no petition for post-conviction relief

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under Chapter 34 of the Nevada Revised Statutes (“NRS”), but only a motion to correct his

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sentence under NRS section 176.555, which is probably why the case is classified as “Criminal

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Appeal” as opposed to “Post-Conviction Relief” in the docket of the Nevada Supreme Court.

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That is not a claim of exhaustion of state remedies. There is no evidence or claim that Petitioner

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has exhausted his Chapter 34 remedies.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Reconsider (ECF No. 19) and the Motion
for a Certificate of Appealability (ECF No. 17) are DENIED.

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IT IS SO ORDERED.

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Dated this 30th day April, 2015.
Dated this 27th day ofof April, 2015.

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ROBERT C. JONES
United States District Judge

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