Barrett v. Legrand et al

Filing 36

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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KENNETH DON BARRETT,

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Petitioner,
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vs.
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WARDEN LEGRAND, et al.,
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Respondents.
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_________________________________ )

3:14-cv-00678-HDM-WGC
ORDER

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Before the court are the petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 (#5), respondents’ motion to dismiss

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(#11)

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respondents’ reply (#28) and exhibits (#29), petitioner’s motion to

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extend time (#30) and supplement to his response (#31), respondents’

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motions to strike (##33, 35), and petitioner’s motion for leave to

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correct injustice and supplement exhibits (#34).

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I.

and

exhibits

(##12-20),

petitioner’s

response

(#24),

Procedural History

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A.

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On March 20, 1986, in the Eighth Judicial District Court of the

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State of Nevada, petitioner was charged by information in Case No.

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86C073673 (C73673) with burglary, robbery with the use of a deadly

Conviction and Direct Appeal

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weapon, victim 65 years of age or older, and grand larceny auto. (Ex.

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12). The following day, petitioner was charged by information in Case

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No. 86C073702 (C73702) with grand larceny auto, burglary, robbery with

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the use of a deadly weapon, and attempted murder with the use of a

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deadly weapon.

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motion to consolidate the two informations and try them jointly before

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the same jury.

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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).

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The state filed a notice of intent to seek habitual criminal

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enhancement and the district court adjudicated the petitioner a

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habitual criminal. (Exs. 59, 62 (C73702), 63 (C73673)).

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filed the judgment of conviction in C73702 on December 23, 1986. (Ex.

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62). Defendant was sentenced to 9 years for grand larceny auto (count

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1), 9 years plus an additional 10 for a total of 19 by virtue of being

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a

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consecutive 14 years on the enhancement for robbery with the use of

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a deadly weapon (count 3), a term of 19 years plus a consecutive 19

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years on the enhancement for attempt murder with a deadly weapon

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(count 4). (Id.). The sentence was to run consecutive to the Arizona

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sentence the petitioner was serving.

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habitual

criminal

for

burglary

(count

2),

14

The court

years

plus

a

(Id.).

The court filed the judgment of conviction in C73673 on December

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30, 1986.

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burglary (count 1), 14 years plus a consecutive 14 years on the

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enhancement for robbery with the use of a deadly weapon, victim 65

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years of age or older (count 2), “an additional TEN (10) years to be

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added on for a total of NINETEEN (19) years plus NINETEEN (19) years

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on the enhancement by virtual of being a habitual criminal,” and a

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term of 9 years for grand larceny auto (count 3).

(Ex. 63).

Defendant was sentenced to a term of 9 years for

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(Id.).

The

1

sentence was to run consecutive to the Arizona sentence the petitioner

2

was serving.

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(Id.).

Petitioner filed a notice of appeal on December 31, 1986.

(Ex.

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64).

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filed amended judgments for both C73673 and C73702 to clarify that the

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sentences were to run consecutive to petitioner’s existing federal

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sentence.

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Court

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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

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district court used to enhance petitioner’s sentence.

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remittitur issued on July 11, 1989.

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the

case

(Ex. 83).

for

The

(Ex. 84).

On September 13, 1989, the district court filed the second

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amended judgments of conviction.

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In C73673, the court clarified that petitioner’s sentence for robbery

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with use of a deadly weapon, victim over 65 had been enhanced pursuant

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to the deadly weapon enhancement, and not pursuant to the victim 65

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years or older or habitual criminal enhancements.

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court clarified that the habitual criminal enhancement attached to

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count 2 in C73702, and modified the sentence to, “NINE (9) 9 years

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plus an additional 10 years attached by virtue of being a habitual

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criminal for BURGLARY.”

(Exs. 85 (C73673), 86 (C73702)).

(Ex. 85).

The

(Exs. 86, 11 at 50).

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B.

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Petitioner filed his first state habeas petition on July 6, 1990.

First State Habeas Petition

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(Ex. 91).

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97).

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a motion to clarify, the court found the order was a denial for post-

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conviction relief.

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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
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and

First

Motion

for

1
2

Correction of an Illegal Sentence
On December 3, 1997, petitioner filed his first motion for

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modification of sentence.

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December 18, 1997.

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(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

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correction of an illegal sentence. Ex. 118).

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motion.

The court denied the

Petitioner appealed.2

(Exs. 120, 125).

(Ex. 126).

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The Nevada Supreme Court consolidated petitioner’s appeals of his

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motion to correct illegal sentence and motion for modification of

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sentence.

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petitioner’s appeals in Case Nos. 31690, 31691, 31813.

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The remittitur issued on May 9, 2000.

On April 12, 2000, the Nevada Supreme Court dismissed
(Ex. 138).

(Ex. 139).

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D.

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On July 27, 1999, petitioner filed his second state habeas

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petition challenging a disciplinary action that occurred while he was

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incarcerated.

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in part and denied in part the petition.

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not appeal.

Second State Habeas Petition

(Ex. 130).

On November 22, 1999, the court dismissed
(Ex. 136).

Petitioner did

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E.

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Petitioner filed a second motion for modification of sentence on

Additional Documents Filed in State Court

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May 10, 2006.

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did not appeal.

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On

March

(Ex. 140).

The court denied the motion and petitioner

(Ex. 143).
9,

2009,

petitioner

filed

a

third

motion

for

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modification of sentence.

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petitioner’s third motion for modification of sentence on April 20,

(Ex. 144).

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27

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Nevada Supreme Court Case No. 31690/31691.

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2

Nevada Supreme Court Case No. 31813.
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The district court denied

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2009, and denied his motion for reconsideration on July 30, 2009.

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(Exs. 147, 155).

Petitioner did not appeal.

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On April 22, 2014, petitioner filed a second motion to correct

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an illegal sentence, alleging that he was subject to two enhancements,

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deadly weapon and habitual criminal. (Ex. 172). On May 14, 2014, the

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district court orally denied the motion as to C73673, and granted in

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part as to C73702, amending count 2 to 9 years. (Ex. 11 at 70).

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May 23, 2014, the district court filed a third3 amended judgment of

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conviction in C73702.

(Ex. 177).

On

Consistent with its May 14, 2014

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order, the court amended count 2 by removing the habitual criminal

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enhancement and ordering that the petitioner serve no more than 9

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years and no less than 9 years for burglary. (Id.).

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appealed.4

Petitioner

(Ex. 175).

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On October 15, 2014, the Nevada Supreme Court affirmed the denial

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of petitioner’s second motion to correct an illegal sentence in

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C73673, and the partial denial of his second motion to correct an

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illegal sentence in C73702 (consolidate Case Nos. 65850/65851). (Ex.

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198).

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properly corrected in C73702 and that the petitioner had failed to

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demonstrate that his sentence in C73673 was illegal.

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remittitur issued on November 12, 2014.

The Nevada Supreme Court held that petitioner’s sentence was

(Ex. 198). The

(Ex. 200).

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On October 30, 2014, the Nevada Supreme Court denied as moot

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petitioner’s motion for leave to appear in proper person and an

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opening brief in each appeal that were received on October 10, 2014.

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(Ex. 199).

The Nevada Supreme Court further denied petitioner

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The judgment is incorrectly labeled the second amended judgment.

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Nevada Supreme Court Case Nos. 65850/65851.
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permission to file briefs on the matters.

(Ex. 199).

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F.

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Petitioner submitted his first habeas petition on or about May

Federal Proceedings

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11, 2001.

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convictions in C73702 and C73673, alleging, inter alia, ineffective

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assistance of trial and appellate counsel, prosecutorial misconduct,

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trial court error, juror misconduct, and that his sentences were

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unconstitutional.

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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

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Pardons Board. (Id. at #39).

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motion and dismissed the action without prejudice on January 28, 2003.

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(Id. at #40).

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The court granted the petitioner’s

Petitioner commenced this action on December 18, 2014.

(#5).

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The petition raises two grounds for relief.

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that the state court should have removed petitioner’s use of a deadly

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weapon enhancement instead of the habitual criminal enhancement

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C73673.

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been charged with robbery with a deadly weapon, and not attempted

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murder with a deadly weapon.

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regarding petitioner’s sentence in C73673 are untimely.

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also argue that the petitioner waived his rights to challenge his

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convictions in C73673 by voluntarily dismissing his first federal

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habeas petition.

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2 in the petition are unexhausted.

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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

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A.

Timeliness

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The

Antiterrorism

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(AEDPA)imposes

a

and

one-year

Effective
statute
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of

Death

Penalty

limitations

Act
habeas

of

1996

corpus

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petitions filed by state prisoners in federal court.

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§ 2244(d)(1).

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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.

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State prisoners whose convictions became final prior to the

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AEDPA’s enactment had a one-year grace period in which to file their

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petitions.

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1283, 1286 (9th Cir. 1997), overruled in part on other grounds by

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Calderon v. United States Dist. Ct. (Kelly), 163 F.3d 530, 540 (9th

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Cir. 1998)(en banc).

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“a judgment becomes ‘final’ in one of two ways – either by the

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conclusion of direct review by the highest court, including the United

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States Supreme Court, to review the judgment, or by the expiration of

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time to seek such review.”

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(9th Cir. 2001).

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state’s highest court but declines to pursue a writ of certiorari with

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the United States Supreme Court, the conviction becomes final upon the

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expiration of time to file a petition for writ of certiorari.

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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

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See

Thus, absent tolling

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or delayed accrual, state prisoners whose convictions became final

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prior to April 24, 1996, had until April 24, 1997, to file their

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federal habeas petitions.

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46 (9th Cir. 2001).

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Patterson v. Stewart, 251 F.3d 1243, 1245-

The one-year time limitation is tolled either equitably or during

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the

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judgment or claim at issue.

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Florida, 560 U.S. 631, 645 (2010). Equitable tolling is available “if

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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

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impossible to file a petition on time.”

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Generally, a litigant seeking equitable tolling bears the burden of

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establishing two elements: (1) that he has been pursuing his rights

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diligently, and (2) that some extraordinary circumstance stood in his

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way.”

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state post-conviction petition is not “properly filed” and does not

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toll the period of limitation. Duncan v. Walker, 533 U.S. 167, 181-82

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(2001).

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B.

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It is well established that exhaustion is required before a

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federal court may consider the petition for a writ of habeas corpus.

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28 U.S.C. § 2254(b).

To exhaust a ground for relief, a petitioner

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must

that

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describing the operative facts and legal theory, and give that court

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the opportunity to address and resolve the ground.

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Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6

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(1982).

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Appeals for the Ninth Circuit have held exhaustion requires petitioner

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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

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1

considered in his appeal.

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1000 (9th Cir. 2005) (citing Baldwin v. Reese, 541 U.S. 27, 31-32

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(2004)).

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procedural context in which its merits will not be considered absent

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special circumstances does not constitute fair presentation.” Roettgen

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v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v.

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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

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“[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254

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exhausts available state remedies only if he characterized the claims

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he raised in state proceedings specifically as federal claims.

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short, the petitioner must have either referenced specific provisions

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of the federal constitution or statutes or cited to federal case law.”

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Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in

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original), amended, 247 F.3d 904 (9th Cir. 2001).

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case law that applies federal constitutional principles will also

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suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en

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banc).

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error is insufficient to establish exhaustion.

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appeals to broad constitutional principles, such as due process, equal

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protection, and the right to a fair trial, are insufficient to

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establish exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.

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1999) (citations omitted).

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III. Analysis

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A.

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Ground 1 is a claim that the 5th, 6th, 8th, and 14th Amendments

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were violated because the state court should have removed his use of

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a deadly weapon enhancement in C73673 instead of the habitual criminal

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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

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(#5 at 4-5).

Petitioner

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alleges that the state court imposed consecutive sentences as to all

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of his convictions and that the district court failed to correct his

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illegal sentences.

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that the habitual criminal enhancement was improper, but that the

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state court failed to correct the judgment.

(Id.).

Petitioner alleges that the state agreed

(Id.).

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In case C73673, the last judgment was filed on September 13,

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1989, when the state district court entered a second amended judgment

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of conviction.

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final prior to the enactment of the AEDPA.

(Ex. 85).

As such, the conviction in C73673 became
See Jimenez, 555 U.S. at

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119.

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federal habeas corpus petition, unless the limitations period was

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otherwise tolled.

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corpus petition to this court on December 23, 2014, more than fifteen

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years after the federal limitation period expired.

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petition is therefore untimely as to any challenges to petitioner’s

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sentence in C73673.

Therefore, petitioner had until April 24, 1997, to file a

Petitioner mailed in his current federal habeas

(#1).

The

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Petitioner contends in response to the motion to dismiss that his

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third amended judgment in case C73702 restarts the AEDPA one-year

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statute of limitations period for both cases C73702 and C73673.

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at 12-13).

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judgements, and, therefore, the filing of third amended judgment in

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C73702 does not alter the limitation period for filing his habeas

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petition in C73673.

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“extraordinary circumstances” exist in this case to provide a basis

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for equitable tolling of the federal limitation period.

(#24

However, the two judgments are separate and independent

Additionally, petitioner fails to show that any

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To the extent that the petitioner challenges his sentence in

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C73702, respondents correctly argue that petitioner did not raise this

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claim with the Nevada Supreme Court in either his direct appeal, his
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1

first modification of sentence, his first motion for correction of an

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illegal sentence, or his second motion to correct an illegal sentence.

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Ground 1 is therefore time barred as to C73673 and unexhausted as to

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C73702.

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B.

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Ground 2 is a claim that the 5th, 6th, and 14th Amendments were

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violated because it was not the legislative intent to separately

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punish multiple acts that occur close in time and constitute one

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course

Ground 2

of

criminal

conduct.

The

petitioner

alleges

that

the

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enhancement for use of a deadly weapon should not apply for both

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robbery and attempted murder.

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case C73702 he should have only been charged with robbery with a

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deadly weapon, and not attempted murder with a deadly weapon, since

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the robbery and attemptted murder were part of the same course of

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criminal conduct.

Thus, the petitioner alleges that in

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The court concludes that the petitioner did not raise this claim

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with the Nevada Supreme Court in either his direct appeal, his first

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modification of sentence, his first motion for correction of an

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illegal sentence, or his second motion to correct an illegal sentence.

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Petition argues instead that both grounds have been exhausted as he

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filed an opening brief in the Nevada Supreme Court on October 10,

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2014.

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petitioner’s motion as moot on October 30, 2014, and, therefore, did

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not consider the motions on the merits.

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exhaust ground two in case C73702.

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IV.

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(#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.
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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).

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substantial showing of the denial of a constitutional right” to

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warrant a certificate of appealability. 28 U.S.C. § 2253(c)(2); Slack

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v. McDaniel, 529 U.S. 473, 483-84 (2000).

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inquiry,”

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debatable among jurists of reason; that a court could resolve the

8

issues [in a different manner]; or that the quests are adequate to

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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)).

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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.

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appealability.

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The court will therefore deny petitioner a certificate of

IT IS THEREFORE ORDERED that respondent’s motion to dismiss (#11)

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is GRANTED in part.

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to the extent it challenges his sentence in C73673 and DISMISSED

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WITHOUT PREJUDICE to the extent it challenges his sentence in C73702

21

as

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petitioner’s failure to exhaust his available remedies in state court.

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The clerk of the court shall enter judgment accordingly.

unexhausted.

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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

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appealability.

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. . .

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. . .

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. . .
12

1

IT IS FURTHER ORDERED that petitioner’s motion to extend time

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(#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.

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DATED: This 23rd day of March, 2016.

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____________________________
UNITED STATES DISTRICT JUDGE

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