Berry v. Baca et al

Filing 10

ORDER - Respondents' motion to dismiss (ECF No. 7 ) is granted. This action is dismissed without prejudice because petitioner has not exhausted his available state-court remedies. The Clerk of the Court will enter judgment accordingly and close this action. It is further ordered that a certificate of appealability is denied. Signed by Judge Miranda M. Du on 9/26/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROBERT LOGAN BERRY, JR.,

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Petitioner,
ISIDRO BACA, et al.,
Respondents.

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ORDER

v.

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Case No. 3:16-cv-00470-MMD-WGC

I.

INTRODUCTION

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Before the Court are the petition for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254 (ECF No. 5) and respondents’ motion to dismiss (ECF No. 7). Petitioner has filed

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no response to the motion, which the Court construes as consent to the Court granting

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the motion. See LR 7-2(d). The Court finds that petitioner has not exhausted any of his

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grounds for relief, and the Court grants the motion.

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II.

RELEVANT BACKGROUND

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In the state district court, petitioner agreed to plead no contest to attempted

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robbery and being a habitual criminal. (Exh. 22 (ECF No. 8-22).) At the sentencing

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hearing, petitioner’s counsel raised a question whether the state district court had

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jurisdiction. Petitioner tried to rob a gas station that was owned by a Native American tribe

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and on an Indian reservation. Under NRS § 41.430, jurisdiction might have been with the

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federal courts, not the state courts, to handle the case. (Exh. 24, at 3-4 (ECF No. 8-24, at

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4-5).) The trial court determined that it did have jurisdiction. (Id. at 9 (ECF No. 8-24 at

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10).) Petitioner was convicted of attempted robbery, adjudicated as a habitual criminal,

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and thus sentenced to life in prison with eligibility for parole starting after a minimum of

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ten (10) years. (Exh. 25 (ECF No. 8-25).) Petitioner did not file a timely direct appeal.

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After entry of the judgment of conviction, petitioner filed a motion to withdraw his

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plea. (Exh. 27 (ECF No. 8-27).) The state district court denied the motion. (Exh. 33 (ECF

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No. 8-33).) Petitioner did not appeal the denial of the motion.

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Petitioner also filed a post-conviction habeas corpus petition in the state district

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court. (Exh. 32 (ECF No. 8-32).) The state district court appointed counsel, who filed a

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supplemental petition. (Exh. 36 (ECF No. 9-1).) The state district court dismissed all

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claims for relief but one. (Exh. 39 (ECF No. 9-4).) On the remaining issue—that trial

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counsel had deprived petitioner of a direct appeal—the state district court granted relief

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and authorized a delayed direct appeal pursuant to Rule 4(c) of the Nevada Rules of

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Appellate Procedure. (Exh. 43 (ECF No. 9-8).)

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In the delayed direct appeal, petitioner filed an opening brief. (Exh. 60 (ECF No.

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9-25).) The Nevada Supreme Court affirmed the judgment of conviction. (Exh. 64 (ECF

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No. 9-29).)

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Petitioner then commenced this action. Respondents have moved to dismiss. They

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argue that petitioner has not exhausted his state-court remedies for any of his grounds

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for relief.

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III.

DISCUSSION

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

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petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To

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exhaust a ground for relief, a petitioner must fairly present that ground to the state’s

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

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opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365

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(1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

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In the delayed direct appeal, petitioner raised one issue—the state district court

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did not have jurisdiction over the case because petitioner committed an offense against

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an Indian tribe on an Indian reservation. (Exh. 60 at 9-14 (ECF No. 9-25 at 10-15).)

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Petitioner did not raise on appeal any of the other claims of ineffective assistance of

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counsel that he had raised in his state post-conviction habeas corpus petition and that

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the state district court had denied.

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All three grounds of the petition are not exhausted. Each ground is a claim of

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ineffective assistance of counsel. Petitioner did not present any claims of ineffective

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assistance of counsel in his delayed direct appeal. He might not have been able to do

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that, because Nevada generally does not allow ineffective-assistance claims to be raised

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on direct appeal. Gibbons v. State, 634 P.2d 1214 (Nev. 1981). However, Rule 4(c)(5) of

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the Nevada Rules of Appellate Procedure provides that the one-year period of limitation

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of NRS § 34.726 starts to run from the issuance of the remittitur in the delayed direct

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appeal and that the successive petition bar of NRS § 34.810 does not apply to a state

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habeas corpus petition filed after the conclusion of a delayed direct appeal. Petitioner

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could have filed a new state habeas corpus petition that raised the same claims that he

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had raised in his first state habeas corpus petition, and those claims would not have been

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dismissed as procedurally barred.

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The closest that any claim in the federal petition comes to what petitioner

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presented on delayed direct appeal is a claim that counsel provided ineffective assistance

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because counsel did not appeal the jurisdictional issue. However, that claim is legally

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distinct from the jurisdictional claim that petitioner presented on direct appeal. Petitioner

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cannot hope that the Nevada Supreme Court would have inferred an ineffective-

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assistance claim from the jurisdictional claim that he presented on appeal. See Kelly v.

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Small, 315 F.3d 1063, 1068 n.2 (9th Cir. 2003), overruled on other grounds by Robbins

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v. Carey, 481 F.3d 1143 (9th Cir. 2007).

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Additionally, petitioner’s claim that counsel deprived him of a direct appeal now is

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without merit on its face. The state district court granted relief on this claim, and petitioner

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pursued a delayed direct appeal. This Court cannot grant petitioner any more relief on

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this claim than what he already has received.

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The Court will dismiss this action without prejudice. However, that type of dismissal

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does not mean that the one-year period of limitation of 28 U.S.C. § 2244(d)(1) is tolled in
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any way. Petitioner at all times remains responsible for calculating the running of the one-

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year period of limitation and timely asserting claims.
Reasonable jurists would not find the Court’s conclusion to be debatable or wrong,

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and the Court will not issue a certificate of appealability.

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IV.

CONCLUSION

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It is therefore ordered that respondents’ motion to dismiss (ECF No. 7) is granted.

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This action is dismissed without prejudice because petitioner has not exhausted his

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available state-court remedies. The Clerk of the Court will enter judgment accordingly and

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close this action.

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It is further ordered that a certificate of appealability is denied.

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DATED THIS 26th day of September 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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