Berry v. Baker et al

Filing 3

ORDER - ECF No. 1 IFP Application is GRANTED Clerk shall file the petition and accompanying motion for appointment of counsel. The motion for appointment of counsel is GRANTED. The FPD is provisionally appointed as counsel and shall undertake d irect representation of petitioner or to indicate to the Court inability to do so by 12/13/2017. Clerk shall add AG as counsel for respondents and shall make informal electronic service of this order upon respondents. (E-service 11/13/2017). Respon dents' counsel shall enter a notice of appearance by 12/4/2017 but no further response shall be required until further order of the Court. Clerk shall further send a copy of this order to the pro se petitioner, the AG, the FPD, and the CJA Coordinator. (E-service to P at LCC; Email (NEF) to AG, FPD, and CJA Coord. on 11/13/2017.) Clerk shall provide copies of all prior filings herein to both the AG and FPD. (E-service of ECF Nos. 1 - 2 to AG and FPD on 11/13/2017.)(Copies have been distributed pursuant to the NEF - DRM) Modified on 11/13/2017 for spelling (DRM).

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROBERT LOGAN BERRY, JR.,

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Petitioner,
vs.

ORDER

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3:17-cv-00659-HDM-VPC

WARDEN BAKER, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s

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application (ECF No. 1) to proceed in forma pauperis, on his motion (ECF No. 1-2) for

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appointment of counsel submitted with the petition, and for initial review under Rule 4 of the

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Rules Governing Section 2254 Cases. The Court finds that petitioner is unable to pay the

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filing fee. The pauper application will be granted, and the Court proceeds to initial review.

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Petitioner Robert Berry challenges his Nevada state conviction, pursuant to a plea, of

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attempt to commit robbery and his sentencing as a habitual criminal.1 He is serving a life

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sentence with parole eligibility after a minimum of ten years has been served. The state

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corrections department website inmate search information reflects that the sentence started

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on June 23, 2013, and that Berry currently is 49 years old.

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In addition to any materials available via online legal research, the Court takes judicial notice of the
online docket records of the state appellate courts and its own record in No. 3:16-cv-00470-MMD-WGC,
which includes state court record exhibits from petitioner’s case. E.g., Harris v. County of Orange, 682 F.3d
1126, 1131-32 (9th Cir. 2012). The state appellate court online docket records may be accessed from:
https://nvcourts.gov/Supreme/.

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The original judgment of conviction was entered on September 17, 2013. Ultimately,

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on a timely state post-conviction petition, petitioner was granted an out-of-time appeal

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pursuant to Rule 4(c) of the Nevada Rules of Appellate Procedure. The Supreme Court of

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Nevada affirmed the conviction on October 19, 2015, in No. 66225 in that court. The ninety-

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day time period for filing a certiorari petition in the United States Supreme Court expired on

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Tuesday, January 19, 2016, after the Martin Luther King Jr. Day legal holiday.

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Under N.R.S. 34.726(1) and Rule 4(c)(5) of the Nevada Rules of Appellate Procedure,

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a state post-conviction petition filed within a year of the November 13, 2015, remittitur would

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be timely. The state court record exhibits filed by the respondents in the prior action in this

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Court in No. 3:16-cv-00470 did not reflect the filing of such a state court petition as of the

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December 1, 2016, filing of the exhibits.

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Review of the state appellate court’s online docket records does not reflect that

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petitioner has filed any other proceedings in the appellate courts other than the prior direct

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appeal in No. 66225.

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Petitioner constructively filed a prior federal petition in this Court in No. 3:16-cv-00470

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on or about August 4, 2016. The Court dismissed the petition without prejudice as completely

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unexhausted on September 26, 2017, on the respondents’ unopposed motion to dismiss.

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Petitioner did not appeal the dismissal of that action.

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The present federal petition was mailed to the Clerk for filing on or about October 26,

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2017. That date also was the last day on which petitioner could file a timely notice of appeal

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and/or seek other appropriate relief in No. 3:16-cv-00470 before the judgment became final

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and nonappealable. The current petition likely is untimely on its face standing alone.

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The present petition presents a claim potentially corresponding to the claim exhausted

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in the out-of-time direct appeal. Petitioner challenges whether Nevada could prosecute the

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crime in question because it allegedly was subject to exclusive federal jurisdiction because

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it occurred at a store owned by the Fallon Paiute-Shoshone Tribe and operated in Indian

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country. (ECF No. 1-1, at 3-4.) The Supreme Court of Nevada rejected a similar claim on

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direct appeal. (See No. 3:16-cv-00470, ECF No. 9-29, Exhibit 64.)
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Taking into account the foregoing procedural history, the Court finds that appointment

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of counsel would be in the interests of justice given the lengthy sentence and the potential

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complexity of the procedural and substantive legal issues presented.

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appointment of counsel accordingly will be granted.

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The motion for

IT THEREFORE IS ORDERED that petitioner’s application (ECF No. 1) to proceed in
forma pauperis is GRANTED and that petitioner will not be required to pay the filing fee.

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IT FURTHER IS ORDERED that the Clerk of Court shall file the petition and

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accompanying motion for appointment of counsel, that the motion for appointment of counsel

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is GRANTED, and that the Clerk shall reflect the grant of the motion when docketing the

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motion in a manner consistent with the Clerk’s current practice for such matters. The counsel

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appointed will represent the petitioner in all federal proceedings related to this matter,

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including any appeals or certiorari proceedings, unless allowed to withdraw.

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IT FURTHER IS ORDERED that the Federal Public Defender shall be provisionally

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appointed as counsel and shall have thirty (30) days to undertake direct representation of

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petitioner or to indicate to the Court the office's inability to represent petitioner in these

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proceedings. If the Federal Public Defender is unable to represent petitioner, the Court then

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shall appoint alternate counsel. A deadline for the filing of an amended petition and/or

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seeking other relief will be set after counsel has entered an appearance.

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anticipates setting the deadline for approximately one hundred twenty (120) days from entry

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of the formal order of appointment. Any deadline established and/or any extension thereof

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will not signify any implied finding of a basis for tolling during the time period established.

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Petitioner at all times remains responsible for calculating the running of the federal limitation

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period and timely presenting claims. That is, by setting a deadline to amend the petition

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and/or by granting any extension thereof, the Court makes no finding or representation that

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the petition, any amendments thereto, and/or any claims contained therein are not subject to

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dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).

The Court

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IT FURTHER IS ORDERED, so that the respondents may be electronically served with

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any papers filed through counsel, that the Clerk shall add state attorney general Adam P.
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Laxalt as counsel for respondents and shall make informal electronic service of this order

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upon respondents by directing a notice of electronic filing to him. Respondents' counsel shall

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enter a notice of appearance within twenty-one (21) days of entry of this order, but no further

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response shall be required from respondents until further order of the Court.

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The Clerk further shall send a copy of this order to the pro se petitioner, the Nevada
Attorney General, the Federal Public Defender, and the CJA Coordinator for this division.

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The Clerk additionally shall provide copies of all prior filings herein to both the Attorney

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General and the Federal Public Defender in a manner consistent with the Clerk's current

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practice, such as regeneration of notices of electronic filing.

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DATED: November 13, 2017.

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__________________________________
HOWARD D. MCKIBBEN
United States District Judge

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