3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 KENYA SPLOND, Case No. 2:23-cv-00451-GMN-BNW
6 Petitioner, v. ORDER 7 GABRIELA NAJERA, et al., 8 Respondents. 9 10 Introduction 11 Petitioner Kenya Splond filed a counseled First Amended Petition for a Writ of Habeas 12 Corpus under 28 U.S.C. § 2254 (“Petition” (ECF No. 15)). Respondents move to dismiss 13 Grounds 2(B) and 2(C) of the Petition as untimely and unexhausted, and Grounds 3(D), 3(E), 14 and 3(F) as untimely and not cognizable in federal habeas corpus. ECF No. 17. The Court will 15 grant Respondents’ Motion to Dismiss. 16 Background 17 In 2016, a jury in the Eighth Judicial District Court for Clark County, Nevada convicted 18 Splond of (1) Conspiracy to Commit Robbery; (2) three counts of Burglary While in Possession 19 of a Firearm; (3) three counts of Possession of Stolen Property, and (4) Possession of Stolen 20 Property. ECF No. 9-6. Splond was sentenced to an aggregate of 168 to 936 months. ECF No. 9- 21 18. Judgment was originally entered on February 13, 2017, and affirmed on appeal. ECF No. 22 10-5. 23 Splond subsequently filed a state Petition for Writ of Habeas Corpus (“state petition”). 24 ECF No. 10-10. He appealed the denial of the state petition, and the Nevada Court of Appeals 25 affirmed in part, reversed in part, and remanded for an evidentiary hearing to determine whether 26 trial counsel was ineffective in failing to argue there was a lack of evidence to support the charge 27 of Possession of Stolen Property. ECF No. 10-50 at 6–9. 28 On remand, the State opted to dismiss the conviction for Possession of Stolen Property 1 and on December 13, 2022, the state district court entered an Amended Judgment reflecting the 2 dismissal. ECF No. 10-55 at 4. On December 20, 2022, the state district court entered an 3 identical Second-Amended Judgment dismissing the conviction for Possession of Stolen 4 Property. ECF No. 10-56. 5 On March 24, 2023, Splond filed an original federal habeas corpus petition, signed by 6 retained counsel, asserting the following grounds for relief: 7 1. The state district court failed to hold an evidentiary hearing despite the Nevada Supreme Court’s remand and the State instead dismissed the charge; 8 2. Ineffective assistance of trial counsel for failure to convey a plea offer; 9 3. Ineffective assistance of trial counsel for 10 (A) failure to oppose the State’s Motion to Consolidate cases; (B) failure to present expert testimony; and 11 (C) failure to jury instructions [sic]. 12 13 ECF No. 1 at 1–17. 14 Respondents moved to dismiss the original federal petition claiming Ground 1 failed to 15 state a claim and Grounds 2 and 3 were conclusory. ECF No. 7 at 2–4. This Court determined 16 Grounds 2 and 3 were conclusory but denied Respondents’ Motion to Dismiss without prejudice, 17 giving Splond an opportunity to file a First Amended Petition clarifying his claims in accordance 18 with the pleading standards of the Habeas Rules. ECF No. 13 at 2–4. 19 On March 18, 2024, Splond filed a counseled First Amended Petition. ECF No. 15. In 20 relevant part, he alleges trial counsel provided ineffective assistance by failing to: 21 Ground 2: 22 (A) convey a plea offer to Splond; (B) provide the court with relevant information for sentencing that 23 would have swayed the court; and 24 (C) raise a Stockmeyer issue with respect to the Department of Parole and Probation and the pre-sentence investigation report. 25 Ground 3: 26 (A) oppose the State’s Motion to Consolidate cases; (B) provide/present expert testimony; 27 (C) request a jury instruction specifically addressing eyewitness 28 identification; 1 possession of stolen property; and 2 (E) request an inverse jury instruction regarding the possession of stolen property. 3 4 ECF No. 15 at 3–8. Splond additionally alleges in Ground 3(F) that appellate counsel was 5 ineffective for failing to argue there was insufficient evidence produced at trial that Splond knew 6 or should have known that the firearm he used was stolen. Id. at 6. 7 Discussion 8 I. Grounds 2(B) and 2(C) are untimely and do not relate back. 9 Respondents contend that Grounds 2(B) and 2(C) are untimely or, alternatively, 10 unexhausted. ECF No. 17 at 6–9. The Court agrees these claims are untimely and do not relate 11 back to a timely petition. 12 AEDPA establishes a one-year limitation period for state prisoners to file a federal habeas 13 petition under 28 U.S.C. § 2254. The one-year limitation period, i.e., 365 days, begins to run, as 14 relevant here, on the date on which the petitioner’s judgment of conviction became final by either 15 the conclusion of direct appellate review or the expiration of the time for seeking such review. 28 16 U.S.C. § 2244(d)(1)(A). The judgment from which the one-year limitation period runs “is the one 17 pursuant to which the petitioner is incarcerated.” See Smith v. Williams, 871 F.3d 684, 687–88 (9th 18 Cir. 2017); see also Magwood v. Patterson, 561 U.S. 320, 331 (2010) (“A § 2254 petitioner . . . 19 ‘seeks invalidation (in whole or in part) of the judgment authorizing the prisoner’s confinement.’”) 20 (quoting Wilkinson v. Dotson, 544 U.S. 74, 83 (2005))). When an amended judgment of conviction 21 is entered, it is considered a “new judgment, starting a new one-year statute of limitations.” See 22 Smith, 871 F.3d at 688. 23 Splond challenges the constitutionality of his confinement under the state court’s Second 24 Amended Judgment dated December 20, 2022. ECF Nos. 1 at 1; 15 at 2. The Second Amended 25 Judgment authorizing Splond’s confinement appears to constitute a new, intervening judgment 26 that restarted the clock for federal habeas purposes. That Second Amended Judgment became 27 final on January 19, 2023, when the 30-day period for filing a Notice of Appeal with the Nevada 28 appellate courts expired. See Nev. R. App. P. 4(b). The Court therefore calculates Splond’s 1 original federal petition (ECF No. 1) was timely filed on March 24, 2023, but Splond’s First 2 Amended Petition, filed on March 18, 2024, is untimely. 3 A new claim in an amended petition that is filed after the expiration of the one-year 4 limitation period for filing a federal habeas petition will be timely only if the new claim relates 5 back to a claim in a timely-filed pleading. Fed. R. Civ. P. 15(c). “Relation back depends on the 6 existence of a common core of operative facts uniting the original and newly asserted claims.” 7 Mayle v. Felix, 545 U.S. 644, 659 (2005). An amended habeas petition “does not relate back 8 (and thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief 9 supported by facts that differ in both time and type” from those alleged in the timely petition. Id. 10 at 650. 11 Grounds 2(B) and 2(C) of the First Amended Petition are entirely new claims that were 12 not alleged in the original petition. Compare ECF Nos. 1 and 15.
Free access — add to your briefcase to read the full text and ask questions with AI
3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 KENYA SPLOND, Case No. 2:23-cv-00451-GMN-BNW
6 Petitioner, v. ORDER 7 GABRIELA NAJERA, et al., 8 Respondents. 9 10 Introduction 11 Petitioner Kenya Splond filed a counseled First Amended Petition for a Writ of Habeas 12 Corpus under 28 U.S.C. § 2254 (“Petition” (ECF No. 15)). Respondents move to dismiss 13 Grounds 2(B) and 2(C) of the Petition as untimely and unexhausted, and Grounds 3(D), 3(E), 14 and 3(F) as untimely and not cognizable in federal habeas corpus. ECF No. 17. The Court will 15 grant Respondents’ Motion to Dismiss. 16 Background 17 In 2016, a jury in the Eighth Judicial District Court for Clark County, Nevada convicted 18 Splond of (1) Conspiracy to Commit Robbery; (2) three counts of Burglary While in Possession 19 of a Firearm; (3) three counts of Possession of Stolen Property, and (4) Possession of Stolen 20 Property. ECF No. 9-6. Splond was sentenced to an aggregate of 168 to 936 months. ECF No. 9- 21 18. Judgment was originally entered on February 13, 2017, and affirmed on appeal. ECF No. 22 10-5. 23 Splond subsequently filed a state Petition for Writ of Habeas Corpus (“state petition”). 24 ECF No. 10-10. He appealed the denial of the state petition, and the Nevada Court of Appeals 25 affirmed in part, reversed in part, and remanded for an evidentiary hearing to determine whether 26 trial counsel was ineffective in failing to argue there was a lack of evidence to support the charge 27 of Possession of Stolen Property. ECF No. 10-50 at 6–9. 28 On remand, the State opted to dismiss the conviction for Possession of Stolen Property 1 and on December 13, 2022, the state district court entered an Amended Judgment reflecting the 2 dismissal. ECF No. 10-55 at 4. On December 20, 2022, the state district court entered an 3 identical Second-Amended Judgment dismissing the conviction for Possession of Stolen 4 Property. ECF No. 10-56. 5 On March 24, 2023, Splond filed an original federal habeas corpus petition, signed by 6 retained counsel, asserting the following grounds for relief: 7 1. The state district court failed to hold an evidentiary hearing despite the Nevada Supreme Court’s remand and the State instead dismissed the charge; 8 2. Ineffective assistance of trial counsel for failure to convey a plea offer; 9 3. Ineffective assistance of trial counsel for 10 (A) failure to oppose the State’s Motion to Consolidate cases; (B) failure to present expert testimony; and 11 (C) failure to jury instructions [sic]. 12 13 ECF No. 1 at 1–17. 14 Respondents moved to dismiss the original federal petition claiming Ground 1 failed to 15 state a claim and Grounds 2 and 3 were conclusory. ECF No. 7 at 2–4. This Court determined 16 Grounds 2 and 3 were conclusory but denied Respondents’ Motion to Dismiss without prejudice, 17 giving Splond an opportunity to file a First Amended Petition clarifying his claims in accordance 18 with the pleading standards of the Habeas Rules. ECF No. 13 at 2–4. 19 On March 18, 2024, Splond filed a counseled First Amended Petition. ECF No. 15. In 20 relevant part, he alleges trial counsel provided ineffective assistance by failing to: 21 Ground 2: 22 (A) convey a plea offer to Splond; (B) provide the court with relevant information for sentencing that 23 would have swayed the court; and 24 (C) raise a Stockmeyer issue with respect to the Department of Parole and Probation and the pre-sentence investigation report. 25 Ground 3: 26 (A) oppose the State’s Motion to Consolidate cases; (B) provide/present expert testimony; 27 (C) request a jury instruction specifically addressing eyewitness 28 identification; 1 possession of stolen property; and 2 (E) request an inverse jury instruction regarding the possession of stolen property. 3 4 ECF No. 15 at 3–8. Splond additionally alleges in Ground 3(F) that appellate counsel was 5 ineffective for failing to argue there was insufficient evidence produced at trial that Splond knew 6 or should have known that the firearm he used was stolen. Id. at 6. 7 Discussion 8 I. Grounds 2(B) and 2(C) are untimely and do not relate back. 9 Respondents contend that Grounds 2(B) and 2(C) are untimely or, alternatively, 10 unexhausted. ECF No. 17 at 6–9. The Court agrees these claims are untimely and do not relate 11 back to a timely petition. 12 AEDPA establishes a one-year limitation period for state prisoners to file a federal habeas 13 petition under 28 U.S.C. § 2254. The one-year limitation period, i.e., 365 days, begins to run, as 14 relevant here, on the date on which the petitioner’s judgment of conviction became final by either 15 the conclusion of direct appellate review or the expiration of the time for seeking such review. 28 16 U.S.C. § 2244(d)(1)(A). The judgment from which the one-year limitation period runs “is the one 17 pursuant to which the petitioner is incarcerated.” See Smith v. Williams, 871 F.3d 684, 687–88 (9th 18 Cir. 2017); see also Magwood v. Patterson, 561 U.S. 320, 331 (2010) (“A § 2254 petitioner . . . 19 ‘seeks invalidation (in whole or in part) of the judgment authorizing the prisoner’s confinement.’”) 20 (quoting Wilkinson v. Dotson, 544 U.S. 74, 83 (2005))). When an amended judgment of conviction 21 is entered, it is considered a “new judgment, starting a new one-year statute of limitations.” See 22 Smith, 871 F.3d at 688. 23 Splond challenges the constitutionality of his confinement under the state court’s Second 24 Amended Judgment dated December 20, 2022. ECF Nos. 1 at 1; 15 at 2. The Second Amended 25 Judgment authorizing Splond’s confinement appears to constitute a new, intervening judgment 26 that restarted the clock for federal habeas purposes. That Second Amended Judgment became 27 final on January 19, 2023, when the 30-day period for filing a Notice of Appeal with the Nevada 28 appellate courts expired. See Nev. R. App. P. 4(b). The Court therefore calculates Splond’s 1 original federal petition (ECF No. 1) was timely filed on March 24, 2023, but Splond’s First 2 Amended Petition, filed on March 18, 2024, is untimely. 3 A new claim in an amended petition that is filed after the expiration of the one-year 4 limitation period for filing a federal habeas petition will be timely only if the new claim relates 5 back to a claim in a timely-filed pleading. Fed. R. Civ. P. 15(c). “Relation back depends on the 6 existence of a common core of operative facts uniting the original and newly asserted claims.” 7 Mayle v. Felix, 545 U.S. 644, 659 (2005). An amended habeas petition “does not relate back 8 (and thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief 9 supported by facts that differ in both time and type” from those alleged in the timely petition. Id. 10 at 650. 11 Grounds 2(B) and 2(C) of the First Amended Petition are entirely new claims that were 12 not alleged in the original petition. Compare ECF Nos. 1 and 15. Nowhere in the original 13 petition, including the attached exhibits, did Splond allege or present any facts relating to claims 14 that trial counsel was ineffective at sentencing for failing to present letters of recommendation, a 15 sentencing memorandum explaining Splond’s drug issues, family history, and current efforts at 16 rehabilitation, or pursue a Stockmeyer issue related to the Presentencing Investigation Report’s 17 references to the criminal history of Splond’s family. Id. The Court must therefore conclude that 18 the untimely claims in Grounds 2(B) and 2(C) of the First Amended Petition do not relate back 19 to the original petition as they assert new grounds for relief supported by facts that differ in both 20 time and type from those alleged in the timely original federal petition. Mayle, 545 U.S. at 650. 21 Accordingly, the Court dismisses Grounds 2(B) and 2(C) of the Petition as untimely. 22 II. Grounds 3(D), 3(E), and 3(F) are not cognizable claims. 23 Grounds 3(D), 3(E), and 3(F) allege counsel was ineffective in failing to pursue actions 24 related to the conviction for Possession of Stolen Property. ECF No. 15 at 6–7. Respondents 25 moved to dismiss these claims as untimely or, alternatively, not cognizable. ECF No. 17 at 6–7, 26 9–10. The Court agrees these claims are not cognizable. 27 The federal habeas statute gives the federal district courts jurisdiction to entertain petitions 28 for habeas relief only from persons who are “in custody in violation of the Constitution or laws or 1 || treaties of the United States.” See 28 U.S.C. § 2254(a). The Supreme Court has “[i]nterpreted the 2 || statutory language as requiring that the habeas petitioner be ‘in custody’ under the conviction or 3 || sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 4 || (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238); see also Magwood, 561 U.S. at 331. 5 Grounds 3(D), 3(E), and 3(F) attack counsel’s actions related to the conviction for 6 || Possession of Stolen Property. At the time that Splond filed his original federal petition, he was 7 || no longer “in custody” under the judgment for that conviction because the December 2022 8 || judgments authorizing Splond’s confinement state the conviction for possession of stolen property 9 || was dismissed before Splond filed his original federal petition. ECF Nos. 10-55; 10-56. Grounds 10 |} 3(D), 3(B), and 3(F) of the Petition must be dismissed as not cognizable under 28 U.S.C. § 2254(a). 11 Conclusion 12 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 17) is granted as 13 || follows: 14 1. Grounds 2(B) and 2(C) are dismissed as untimely. 15 2. Grounds 3(D), 3(E), and 3(F) are dismissed as not cognizable. 16 DATED: December 2, 2024 17 18 19 UNTPEDSTATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28