Wilson v. Filson et al

Filing 30

ORDER that respondents' motion to dismiss (ECF No. 14 ) is granted; Ground One of the petition for writ of habeas corpus (ECF No. 6 ) is dismissed; Respondents answer to the remaining claim is due by 5/3/2019; in all other respec ts, the scheduling of this matter is governed by the scheduling order entered June 6, 2018 (ECF No. 5 ); respondents' motion for extension of time (ECF No. 11 ) is granted nunc pro tunc as of August 3, 2018. Signed by Judge Howard D. McKibben on 3/19/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KYLE WILSON,

Case No. 3:18-cv-00160-HDM-CBC
Petitioner,

v.

ORDER

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TIMOTHY FILSON,
Respondents.

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This is a habeas corpus proceeding under 28 U.S.C. § 2254. Respondents have

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filed a motion to dismiss arguing that Ground one of petitioner Wilson’s habeas petition

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(ECF No. 6) is moot. ECF No. 14.

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In Ground One, Wilson alleges a violation of his constitutional right to effective

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assistance of appellate counsel premised on appellate counsel’s failure to brief a double

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jeopardy issue as ordered by the Nevada Supreme Court on November 14, 2014. In

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Wilson’s state post-conviction proceeding, however, the state district court granted relief

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on Wilson’s underlying double jeopardy claim. ECF No. 24-7. On appeal, the Nevada

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Court of Appeals determined the same claim Wilson now raises as Ground One was

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rendered moot by the lower court’s decision. ECF No. 24-22, p. 2-3.

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This court concludes that Ground One is moot in this proceeding as well because
Wilson has already been granted all available relief for the claim. See United States v.

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Huguez-Ibarra, 954 F.2d 546, 553 (9 th Cir. 1992) (Appellant’s assertion that his

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conviction was based on an alleged violation of Brady v. Maryland, 373 U.S. 83 (1963)

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was moot due to reversal of Appellant’s conviction on other grounds). Alternatively, the

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claim is without merit because Wilson is not able meet the prejudice requirement for an

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ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668,

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687 (1984) (To establish ineffective-assistance-of-counsel, a petitioner must

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demonstrate (1) that counsel’s performance was deficient, and (2) that counsel’s

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deficient performance prejudiced the defense.).

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 14)

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is GRANTED. Ground One of the petition for writ of habeas corpus (ECF No. 6) is

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DISMISSED for reasons discussed above.

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IT IS FURTHER ORDERED that respondents shall have 45 days from the

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date of this order to file their answer to the remaining claim in the petition (ECF No. 6).

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In all other respects, the scheduling of this matter is governed by the scheduling order

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entered June 6, 2018 (ECF No. 5).

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IT IS FURTHER ORDERED that respondents’ motion for extension of time (ECF
No. 11) is GRANTED nunc pro tunc as of August 3, 2018.
DATED THIS 19th day of March, 2019.

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UNITED STATES DISTRICT JUDGE

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