3:11-cv-00163-RCJ-VPC (D. Nev. Jun. 20, 2011)

From Casetext: Smarter Legal Research

Tjeltveit v. McDaniel

United States District Court, D. Nevada

Jun 20, 2011

3:11-cv-00163-RCJ-VPC (D. Nev. Jun. 20, 2011)

Opinion

3:11-cv-00163-RCJ-VPC.

June 20, 2011

ORDER

ROBERT JONES, District Judge

This habeas matter under 28 U.S.C. § 2254 comes before the Court on a sua sponte inquiry into whether the petition is time-barred because it was not filed within the one-year limitation period in 28 U.S.C. § 2244(d)(1), as well as upon petitioner's motion (#3) for appointment of counsel. This order follows upon the Court's earlier show cause order (#5) and petitioner's response (#6) thereto.

Background

Petitioner Matthew Tjeltveit challenges his Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon.

The January 13, 2011, state supreme court order affirming the dismissal of petitioner's state post-conviction petition as untimely reflects the following procedural history.

See #6, at electronic docketing pages 81-83. The order also may be found at Tjeltveit v. Warden, 2011 WL 222503 (Nev., Jan. 13, 2011), or online, athttp://www.nevadajudiciary.us/index.php/supremecourt, under the "Case Search" link in the upper right.

The judgment of conviction was filed on June 7, 2007.

No notice of appeal was filed within the thirty-day time period for filing a direct appeal. The time to do so expired on Monday, July 9, 2007.

On November 7, 2007, petitioner filed a proper person notice of appeal. The state supreme court dismissed the untimely appeal for lack of jurisdiction on December 27, 2007; and the remittitur issued on January 22, 2008.

On August 5, 2008, petitioner filed a state post-conviction petition. On January 13, 2011, the state supreme court affirmed the dismissal of the petition on the basis that the petition was untimely. The remittitur issued on February 7, 2011.

On or about March 1, 2011, petitioner mailed the present federal petition to the Clerk of this Court for filing.

Discussion

Pursuant to Herbst v. Cook, 260 F.3d 1039 (9^th Cir. 2001), the Court sua sponte has raised the question of whether the petition is time-barred for failure to file the petition within the one-year limitation period in 28 U.S.C. § 2244(d)(1).

Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year limitation period, unless otherwise tolled, begins running after "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such direct review." In the present case, the limitation period, unless tolled or subject to a different starting date on some other basis, thus began running on the face of the present record after the expiration of the time period for filing a direct appeal, i.e., after July 9, 2007. Absent tolling or a different accrual date, the one-year limitation period would expire one year later, on July 9, 2008.

Under 28 U.S.C. § 2244(d)(2), the federal one-year limitation period is statutorily tolled during the pendency of a properly filed application for state post-conviction relief. However, an untimely state post-conviction petition is not "properly filed;" and it thus does not statutorily toll the federal limitation period. Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Petitioner's state post-conviction petition was denied as untimely, and the petition therefore did not statutorily toll the federal limitation period under Section 2244(d)(2).

Absent other tolling, or a later accrual date, the federal limitation period therefore expired on July 9, 2008. Petitioner did not mail the federal petition until March 1, 2011, two years, seven months, and twenty days after the limitation period had expired, absent tolling or a later accrual date. The petition therefore is untimely on the face of the record.

The Court accordingly directed petitioner to show cause in writing why the petition should not be dismissed with prejudice as time-barred. In response, petitioner presents a number of arguments seeking to establish a basis for equitable or other tolling.

In this regard, equitable tolling is appropriate only if the petitioner can show "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) ( quoting Pace, 544 U.S. at 418, 125 S.Ct. at 1814). Equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and "the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) ( quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this "extraordinary exclusion." 292 F.3d at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).

At the very outset, petitioner has failed to present competent evidence supporting his claim of tolling to the extent that he makes unsworn factual assertions that are not corroborated by court records. The show cause order clearly stated:

IT FURTHER IS ORDERED that all assertions of fact made by petitioner must be detailed, must be specific as to time and place, and must be supported by competent evidence. The Court will not consider any assertions of fact that are not specific as to time and place, that are not made pursuant to a declaration under penalty of perjury based upon personal knowledge, and/or that are not supported by competent evidence filed by petitioner in the record in this Court.

#5, at 4.

Petitioner's factual assertions in the response are not made pursuant to a declaration under penalty of perjury. His unsworn factual assertions that are not corroborated by court records therefore do not constitute competent evidence supporting a claim of equitable or other tolling.

Petitioner attached an affirmation under a state statute that his response did not contain any person's social security number and a certificate of service. See #6, at 84-85. Neither document constituted a declaration under penalty of perjury attesting that the factual statements in the show cause response are true and correct.

The Court accordingly disregards all such unsupported and uncorroborated unsworn factual assertions in the response.

In all events, even if, arguendo, petitioner had supported all factual assertions in the show cause response with competent — and specific — evidence, the circumstances described in the show cause response do not establish a basis for equitable tolling.

Petitioner's tolling arguments are based upon his prior federal action in this Court in No. 3:08-cv-00054-LRH-VPC. Petitioner mailed the petition and pauper application in that matter on or about January 22, 2008, and the Clerk received and filed the papers on January 25, 2008. Seventy-seven days later, on April 11, 2008, the Court denied the pauper application and gave petitioner thirty days to pay the $5.00 filing fee. On June 26, 2008, the filing fee was paid. Four days later, on June 30, 2008, the Court issued an order noting that the responses in the petition reflected that the petition was wholly unexhausted. The order gave petitioner thirty days to amend and demonstrate, if possible, exhaustion of his claims. Petitioner did not respond to the order, and the state court record reflects that filed his untimely state post-conviction petition on August 5, 2008. This Court thereafter dismissed the wholly unexhausted federal petition without prejudice on April 28, 2009.

Petitioner refers to the June 30, 2008, order as an order "dismissing" the first petition. The June 30, 2008, order clearly was an order directing petitioner to demonstrate exhaustion, not an order of dismissal.

None of petitioner's arguments based upon the prior federal action have any merit.

First, petitioner urges that he is entitled to equitable tolling because the Court allegedly erred in No. 3:08-cv-00054 in not — sua sponte — transferring the matter to the "appropriate court of jurisdiction," i.e., according to petitioner's argument, the state district court, as allegedly required by Rule 22(a) of the Federal Rules of Appellate Procedure (FRAP) and 28 U.S.C. § 1631.

This argument is frivolous.

Neither FRAP 22(a) nor § 1631 had anything remotely to do with the prior case.

FRAP 22(a) provides that a habeas application "must be made to the appropriate district court" and that if it instead is made to a circuit judge the application then must be transferred to the appropriate district court. FRAP 22(a) — which is a rule of appellate procedure applicable within the federal system — is referring to the filing of an application in a federal district court and the transfer of a petition filed with a federal circuit judge to a federal district court. It does not establish, much less require, a procedure for the transfer of actions filed in a federal district court to a state district court.

Section 1631, in turn, states in pertinent part that "[w]henever a civil action is filed in a court as defined in Section 610 of this title . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action or appeal could have been brought at the time it was filed." 28 U.S.C. § 1631 (emphasis added). Section 610 of Title 28, i.e., 28 U.S.C. § 610, defines "courts" as, in pertinent part, "the courts of appeals and district courts of the United States," which is a reference to the courts of the federal sovereign, not state courts. Section 1631 thus is referring to transfer to another federal court, not to a state court. It thus is established law that § 1631 does not authorize, much less require, transfers of federal actions to state courts. See, e.g., McLaughlin v. Arco Polymers, Inc., 721 F.2d 426, 428-29 (3^rd Cir. 1983).

Petitioner's argument — that he is entitled to equitable tolling because the Court erred in failing to transfer the prior action to state court under FRAP 22(a) and § 1631 — thus is completely frivolous. There is no such procedure, much less a requirement, for same.

A lack of exhaustion in any event does not deprive a federal district court of jurisdiction. See, e.g., Castille v. Peoples, 489 U.S. 346, 348, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989).

Second, petitioner urges that the January 22, 2008, federal petition should toll the federal limitation period. He maintains that the Court should toll the limitation period from January 22, 2008, forward and then should either transfer the prior petition "back to the district court of jurisdiction to be properly exhausted" or grant a stay and abeyance so that petitioner can exhaust his state court remedies.

Under established law, the prior petition did not toll the federal limitation period, the present untimely federal petition does not relate back to the prior federal petition, and the prior wholly unexhausted petition properly was dismissed rather than transferred or stayed.

The Supreme Court held in Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), that a prior federal petition dismissed for lack of exhaustion does not statutorily toll the federal limitation period. The Ninth Circuit further has held that a later federal petition filed after a prior wholly unexhausted petition was dismissed does not relate back to the prior petition. Rasberry v. Garcia, 448 F.3d 1150, 1154-55 (9^th Cir. 2006). A district court potentially has the equitable power to correct a prior mistaken dismissal. See id. However, the dismissal of the prior wholly unexhausted petition — after petitioner failed to file any response to the show cause order — plainly was not mistaken. A stay of the petition clearly was not available when the matter was dismissed because none of the claims in the prior petition were exhausted. E.g., Rasberry, 448 F.3d at 1154; Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). As discussed previously, the transfer argument is utterly frivolous.

The prior petition therefore did not toll the limitation period, there is no relation back of the present untimely petition to the prior petition, and the prior wholly unexhausted petition clearly was properly dismissed rather than — sua sponte — stayed or transferred.

Third, petitioner contends that this Court should have recognized from the face of the prior petition and its procedural history that the petition was wholly unexhausted and then either "transferred the petition to the appropriate court of jurisdiction" or dismissed it immediately — so that petitioner then could have filed a timely state petition.

Petitioner's argument of course pertains to his failure to file a timely state petition within one year of the judgment of conviction, i.e., on or before Monday, June 9, 2008. The argument relates only indirectly to the untimeliness of the present federal petition, in that the state petition did not statutorily toll the federal limitation period because it was untimely filed. In any event, a petitioner must properly commence the federal action by paying the filing fee (or demonstrating indigence) before it is screened. As discussed further below, petitioner did not pay the filing fee in No. 3:08-cv-00054 until June 26, 2008, after the state limitation period already had expired. It thereafter was appropriate to give petitioner an opportunity to demonstrate that the petition was exhausted prior to a dismissal, as the Court cannot always conclusively rely upon the initial procedural history responses given by a petitioner.

In all events, it clearly was the petitioner's responsibility to determine the applicable limitations period in state court and to file a timely petition in that court. Under established law, it clearly was not the federal district court's obligation first to determine when the state limitations period would run, then to conduct a definitive and conclusive exhaustion analysis to determine whether the federal petition was wholly unexhausted, and finally to ensure that it conducted the foregoing definitive and conclusive analysis of both the state timeliness issue and the federal exhaustion issue in sufficient time to dismiss the federal petition before the state limitations period expired. See, e.g., Pliler v. Ford, 542 U.S. 225, 231-32, 124 S.Ct. 2441, 2446-47, 159 L.Ed.2d 338 (2004) (district courts have no obligation to act as counsel or a paralegal for pro se litigants and to calculate statutes of limitations in order to advise the petitioner as to the most appropriate course to pursue); Rasberry, 448 F.3d at 1153-54 (district court was not required to canvass petitioner to determine whether he had additional exhausted claims before dismissing a wholly unexhausted petition so as to avoid an adverse time-bar effect from the dismissal). A federal district court can reach a matter — whether a pauper application or screening review — only as its docket permits. It, again, is the petitioner's responsibility to seek timely relief in an appropriate court.

Absolutely nothing that this Court did, or failed to do earlier, in the prior federal action stood in the way of petitioner filing a timely state petition (as a basis then for statutory tolling of the federal limitation period). Indeed, the fact that petitioner did file a federal petition in federal court prior to June 9, 2008, demonstrates that he instead could have filed a timely petition in the state courts. It was petitioner's responsibility to file a timely petition in the state district court. He failed to do so.

Fourth, petitioner contends that the action of prison officials constituted an external impediment to his seeking relief for 68 days from April 16, 2008, to June 23, 2008. He maintains that prison officials allegedly improperly failed to process his "brass slip" for payment of the $5.00 filing fee in No. 3:08-cv-00054. He seeks thereby to establish that this alleged impediment caused his "not being able to file a timely state post conviction writ."

The Court notes that petitioner had $280.22 in his primary inmate account at the commencement of the prior action; he was on notice from the financial materials that he attached with his pauper application of the $5.00 filing fee requirement; and he reduced the account down to $2.75 without having yet paid the filing fee. While petitioner disagreed with prison authorities as to whether he could access another prison account, petitioner had at least some role in there not being sufficient funds in the first instance in his primary inmate trust account to pay for the filing fee. See No. 3:08-cv-00054, #1, at electronic docketing pages 4-6; #6, at electronic docketing pages 1-5 9. However, in all events, as discussed in the text, any arguendo alleged impediment by prison officials does not provide a viable basis for tolling of the federal limitation period.
It is noteworthy that, In the state courts, petitioner presented an entirely different factual argument seeking to show cause for the untimeliness of the state petition. See #6, at electronic docketing pages 63-67.

Petitioner again is focused upon his failure to file a timely state petition rather than the failure to timely file the present federal petition. The Court understands that petitioner perhaps is seeking to overcome the untimeliness of the federal petition by seeking to overcome the untimeliness of the state petition so that it can toll the federal limitation period. However, it is established law that once the state courts determine that the state petition is untimely, that "is the end of the matter" with regard to the timeliness of the state petition. E.g., Allen v. Siebert, 552 U.S. 3, 7, 128 S.Ct. 2, 4, 169 L.Ed.2d 329 (2007); Evans v. Chavis, 546 U.S. 189, 194, 126 S.Ct. 846, 850, 163 L.Ed.2d 684 (2006); Pace, 544 U.S. at 413-14, 125 S.Ct. at 1812; Lakey v. Hickman, 633 F.3d 782, 786 (9^th Cir. 2011), petition for cert. filed ___ U.S.L.W. ___ (U.S. May 5, 2011) (No. 10-10378); Banjo v. Ayers, 614 F.3d 964, 968 (9^th Cir. 2010); petition for cert. filed, 79 U.S.L.W. 3377 (U.S. Dec. 14, 2010) (No. 10-803); White v. Martel, 601 F.3d 882, 883-84 (9^th Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 332, 178 L.Ed. 2d 146 (2010). There is no holding that this Court can make that will make the state petition timely and lead to that petition tolling the federal limitation period for two-and-a-half years.

Moreover, any alleged delay in processing petitioner's request for the payment of his filing fee for his prior federal petition clearly did not stand in the way of petitioner filing a state petition prior to June 9, 2008. Petitioner could have filed a state petition at any time — whether prior to or during the pendency of the prior federal petition — notwithstanding any alleged delay by prison officials in processing his fee payment request for his federal action.

In all events in this regard, establishing, arguendo, a basis for equitable tolling of the federal limitation period for only 68 days in the spring of 2008 clearly would not make the current March 1, 2011, federal petition — filed nearly three years later — timely.

Fifth, plaintiff asserts, without any supporting competent evidence, that the prison law library, at some unspecified date, sent him "a U.S. district court habeas packet" and instructed him to file a petition in federal court. It is established law that erroneous legal advice does not provide a basis for equitable tolling. Miranda, 292 F.3d at 1064-68. It further is established law that petitioner's own pro se status or lack of legal sophistication is not an extraordinary circumstance providing a basis for equitable tolling. Rasberry, 448 F.3d at 1154.

Petitioner refers to being "owed heightened judicial solicitude" because of his pro se status. Courts indeed view pro se pleadings with a special solicitude in that such pleadings are construed liberally. Such solicitude, however, does not make a pro se habeas petitioner a ward of the court where the court then becomes responsible for actively overseeing a petitioner's litigation to ensure that he timely seeks appropriate relief not only in federal but also in state court. Under the authorities previously cited, that plainly is not a required, or even proper, role for the court.
The use of a paging system rather than direct law library access at Ely State prison, in and of itself, does not establish a viable basis for equitable tolling. The Constitution does not inexorably require that inmates be provided with direct access to a prison law library as opposed to other possible methods of making legal resources available. The First Amendment guarantees a right to access to the courts, not to specified legal resources. See, e.g., Lewis v. Casey, 518 U.S. 343, 349-51, 116 S.Ct. 2174, 2179-80, 135 L.Ed.2d 606 (1996).

Finally, plaintiff urges that he has exercised diligence in pursuing state and federal relief. However, petitioner must establish both that an extraordinary circumstance stood in his way preventing timely filing of the federal petition and that he exercised diligence. If he fails to adequately demonstrate that an extraordinary circumstance stood in his way, he cannot establish equitable tolling. See, e.g., Rasberry, 448 F.3d at 1153 (court had no need to address the diligence element where extraordinary circumstances had not been shown).

Petitioner accordingly has failed to present a viable basis for tolling. The present federal petition is time-barred and therefore will be dismissed with prejudice.

IT THEREFORE IS ORDERED that the petition shall be DISMISSED with prejudice as time-barred.

IT FURTHER IS ORDERED that petitioner's motion (#3) for appointment of counsel is DENIED, as the petition clearly is untimely and the interests of justice do not otherwise require the appointment of counsel herein.

IT FURTHER IS ORDERED that a certificate of appealability is DENIED. Reasonable jurists would not find debatable or wrong the district court's dismissal of the petition as untimely. Petitioner has failed to support his uncorroborated factual assertions with competent evidence as required by the show cause order. In all events, even accepting petitioner's unsupported factual assertions arguendo at face value, petitioner's arguments seeking to establish tolling of the federal limitation period are without any arguable merit, for the reasons discussed above in the text.

IT FURTHER IS ORDERED that, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Clerk additionally shall serve a copy of this order, the judgment, and — as attachments to this order — ## 1, 5 and 6 upon respondents by effecting informal electronic service of the order and judgment upon Catherine Cortez Masto as per the Clerk's current practice. No response is required from respondents, other than to respond to any orders of a reviewing court.

The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action with prejudice. The Clerk shall provide petitioner a copy of #6 with this order along with a copy of ## 1 and 6 from No. 3:08-cv-00054.

PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 BY A PERSON IN STATE CUSTODY ( NOT SENTENCED TO DEATH)

Steven Relliot, In the Second Judicial District Court of the state of Nevada in and for the county of Washoe, Dept. #10 6/7/07 X 1/22/08 X In the Second Judicial District Court of the state of Nevada, Dept. #10 8/5/08 X 1/13/11 X 03/01/2011 Attach to this petition a copy of all state court written decisions regarding this conviction. X 3:08-cv-00054-LR-VAC U.S. District Court District of Nevada 4/28/09 X X CR-05P2796 Two terms of 20-Life consecutive 11-29-05 to Life Murder with the use of a firearm. X pro se Pro se Jenny Hubach X John Calvert X John Calvert X represented myself X Aziz Merchant X Aziz Merchant X

1. Name and location of court, and name of judge, that entered the judgment of conviction you are challenging: 2. Full date judgment of conviction was entered: . (month/day/year) 3. Did you appeal the conviction? Yes ___ No. Date appeal decided: . 4. Did you file a petition for post-conviction relief or petition for habeas corpus in the state court? Yes ___ No. If yes, name the court and date the petition was filed: /. Did you appeal from the denial of the petition for post-conviction relief or petition for writ of habeas corpus? Yes ___ No. Date the appeal was decided: . Have all of the grounds stated in this petition been presented to the state supreme court? Yes ___ No. If no, which grounds have not? ________________ _______________________________________________________________. 5. Date you are mailing (or handing to correctional officer) this petition to this court: 6. Is this the first federal petition for writ of habeas corpus challenging this conviction? ___ Yes No. If no, what was the prior case number? . And in what court was the prior action filed? ________________________. Was the prior action ___ denied on the merits or dismissed for procedural reasons (check one). Date of decision: . Are any of the issues in this petition raised in the prior petition? Yes ___ No. If the prior case was denied on the merits, has the Ninth Circuit Court of Appeals given you permission to file this successive petition? ___ Yes ___ No. 7. Do you have any petition, application, motion or appeal (or by any other means) now pending in any court regarding the conviction that you are challenging in this action? ___ Yes No. If yes, state the name of the court and the nature of the proceedings: ________________________ _________________________________________________________________________________________________. 8. Case number of the judgment of conviction being challenged: . 9. Length and terms of sentence(s): . 10. Start date and projected release date: . 11. What was (were) the offense(s) for which you were convicted: ______________________________________________________________________________. 12. What was your plea? ___ Guilty Not Guilty ___ Nolo Contendere. If you pleaded guilty or nolo contendere pursuant to a plea bargain, state the terms and conditions of the agreement: ________________________________________________________________. 13. Who was the attorney that represented you in the proceedings in state court? Identify whether the attorney was appointed, retained, or whether you represented yourself (without counsel). Name of Attorney Appointed Retained arraignment and plea ________ ________ trial/guilty plea ________ ________ sentencing ________ ________ direct appeal ________ ________ 1st post-conviction petition ________ ________ appeal from post conviction ________ ________ 2nd post-conviction petition ____________________________ ________ ________ ________ appeal from 2nd post-conviction ___________________________ ________ ________ ________

State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.

GROUND 1

I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 5^th , 6^th , 8^th , and 14^th Amendment right to Effective assistance of counsel based on these facts:

Petitioner's conviction was obtained as the result of ineffectiveness of counsel at trial, Strickland v. Washington, 466 U.S. 668 (1984), Counsel John Calvert did not follow trial Strategyo he allowed the District attorney to make statements harmful to petitioner's case, without objection, Then counsel failed to provide jury instructions adequate for the crime committed, and obulously so, resulting in an ineffertive assistance of trial counsel. Petitioner's counsel was laboring under a prejudicial conflict of interest, Wheat v. U.S., 486 U.S. 153 (1988) Petitioner's counsel was found out after trial to have been working with petitoner's previous counsel, Jenny Hubach, who petitoner had numerous personal conflicts with, which resulted in petitioner filing a complaint with the nevada state bar. Yet John Calvert did not admit working with Jenny Hubach until after trial when, petitioner's counsel was ineffective at sentencing by failing to present mitigating evidence, Williams v. Taylor 528 U.S. 362 (2000), by failing to argue for a lesser sentence, Petitoner was denied right to counsel on appeal, Douglas v California, 372 U.S. 353 (1963), and petitioner's conviction was obtanied as the result of ineffectiveness of counsel on appeal,Smith v. Robbins, 528 U.S. 259 (2000), When John Calvert, after trial and sentencing failed to file a direct appeal from conviction, resulting in the petitioner having to learn a brand new process on his own, and filing a late appeal that was subsequently dismissed because of said tardiness. Petitoner's conviction was a result of cumulative errors of counsel, i.e., errors that, although not prejudicial individually, are cumulatively prejudicial. Mak v. Blodgett, 970 F.2d 614 (9^th cir 1992) apply and Strickland v. Washington 466 (U.S. 668 (1984)

Exhaustion of state court remedies regarding Ground 1:

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?

X Yes ___ No. If no, explain why not: ___________________

________________________________________________________________.

First Post Conviction:

Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus?

X Yes ___ No. If no, explain why not: ______________________ ___________Second Judicial District Court__________________________.

If yes, name of court: _______________________________________ date petition filed 8/5/08.

Did you receive an evidentiary hearing? ___ Yes X No. Did you appeal to the Nevada Supreme Court? X Yes ___ No. If no, explain why not: _________________

________________________________________________________________.

If yes, did you raise this issue? X Yes ___ No. If no, explain why not: ____

________________________________________________________________.

Second Post Conviction:

Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus?

___ Yes ___ No. If yes, explain why: ___________________________

________________________________________________________________.

If yes, name of court: _________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes ___ No. Did you appeal to the Nevada Supreme Court? ___ Yes ___ No. If no, explain why not: _________________

________________________________________________________________.

If yes, did you raise this issue? ___ Yes ___ No. If no, explain why not: __________

________________________________________________________________.

Other Proceedings:

Have you pursued any other procedure/process in an attempt to have your conviction and/or sentence overturned based on this issue (such as administrative remedies)? ___ Yes X No. If yes, explain: _______________________________________________________

________________________________________________________________.

State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.

GROUND 2

I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 5^th , 6^th , 8^th , and 14^th Amendment right to Confrontation of Withesses, based on these facts:

The court admitted prejudicial hearsay that could not be effectively cross-examined by the defense, (or evidence that was admissable under state law, but which denied petitioner the right to confrontation), Douglas v. Alabama, 380 U.S. 415 (1965), and Dutton v. Evans, 400 U. S. 74 (1970) Petitioner's trial counsel and trial court allowed hearsay that could not be affectively angued when witnesses were allowed to testify that they Knew, and heard statements from the petitioner, when in fact, they did not know, let alone hear statements from the petitioner, As well as allowing the District Attorney to make false statements directly to the jury without objection. _______________

________________________________________________________________.

Exhaustion of state court remedies regarding Ground 2:

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?

X Yes ___ No. If no, explain why not: ___________________

________________________________________________________________.

First Post Conviction:

Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus?

X Yes ___ No. If no, explain why not: _______________________________ ________________________________________________________________.

If yes, name of court: Second Judicial District Court date petition filed 8/5/08.

Did you receive an evidentiary hearing? ___ Yes X No. Did you appeal to the Nevada Supreme Court? X Yes ___ No. If no, explain why not: ____________ ________________________________________________________________.

If yes, did you raise this issue? X Yes ___ No. If no, explain why not: ___

________________________________________________________________.

Second Post Conviction:

Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus?

___ Yes ___ No. If yes, explain why: ___________________________

________________________________________________________________.

If yes, name of court: ________________________________________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes ___ No. Did you appeal to the Nevada Supreme Court? ___ Yes ___ No. If no, explain why not: __________________

________________________________________________________________.

If yes, did you raise this issue? ___ Yes ___ No. If no, explain why not: ___

________________________________________________________________.

Other Proceedings:

________________________________________________________________.

State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.

GROUND 3

I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 5^th , 6^th , 8^th , and 14^th Amendment right to Due Process, based on these facts:

There was a total failure to give jury instructions on every essential element of the offense, Sullivan v. Louisiana, 508 U.S. 275 (1993) The jury was instructed only on self defense and 1^st degree murder, leaving out Manslaughter and 2^nd degree, which denied petitioner the right to be convicted of the correct crime, Petitioner was convicted of murder without the court having instructed the jury that it could not convict of murder if it found that petitioner had a mitigating mental state, Sawyer v. Smith, 497 U.S. 227 (1990), Not only was the jury not given this instruction, but the petitioner was not given any type of psychological evaluation prior to trial. The prosecution obtained a conviction on a factual basis different than as charged.Russell v. U.S., 369 U.S. 749 (1962). The first degree murder that was obtained by prosecution, used the argument that petitioner was committing a felony when the murder was committed, however the felony that was supposedly being committed, was not used as a charge in any way against the petitioner. ____________________________________________________

________________________________________________________________.

Exhaustion of state court remedies regarding Ground 3:

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?

X Yes ___ No. If no, explain why not: ___________________

________________________________________________________________.

First Post Conviction:

Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus?

X Yes ___ No. If no, explain why not: ___________________

________________________________________________________________.

If yes, name of court: Second Judicial District Court date petition filed 8/5/08.

Did you receive an evidentiary hearing? ___ Yes X No. Did you appeal to the Nevada Supreme Court? X Yes ___ No. If no, explain why not: ____________

________________________________________________________________.

If yes, did you raise this issue? X Yes ___ No. If no, explain why not: ____

________________________________________________________________.

Second Post Conviction:

Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus?

___ Yes ___ No. If yes, explain why: __________________________

________________________________________________________________.

If yes, name of court: ____________________________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes ___ No. Did you appeal to the Nevada Supreme Court? ___ Yes ___ No. If no, explain why not: ____________________

________________________________________________________________.

If yes, did you raise this issue? ___ Yes ___ No. If no, explain why not: ___

________________________________________________________________.

Other Proceedings:

________________________________________________________________.

State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.

GROUND 4

I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 5^th , 6^th , 8^th , and 14^th Amendment right to Due Process, based on these facts:

Petitioner's conviction was obtained in Violation of a state Statute (or state constitution) provision), which in turn denied petitioner his fundamental rights, Hewitt v. Helms, 59 U.S. 460 (1983), and ford v. Wainwright, 447 U.S. 399 (1983). State law was violated so as to deny petitioner a state-created liberty interest in violation of the constitution. Clemons v. Mississippi, 494 U.S. 738 (1990). Under NRS 174,085, s.s. 5, it states that, "The State may voluntarily dismiss a criminal complaint without prejudice to the right to file another complaint", and "After the dismissal the court shall order the defendant released from custody". Now the initial arrest and charge, was on a criminal complaint, that was not dismissed after the petitioner's arrest, yet the prosecutor obtained a Grand Jury indictment, so that the petitioner's right to a preliminary hearing was denied, Had the prosecutor voluntarily dismissed the initial complaint there would be no violation, however, without that voluntary dismissal of the criminal complaint, the subsequent indictment that was pursued, could not have existed by law, let alone proceed to trial and conviction. __________

________________________________________________________________.

Exhaustion of state court remedies regarding Ground

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?

X Yes ___ No. If no, explain why not: ___________________

________________________________________________________________.

First Post Conviction:

Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus?

X Yes ___ No. If no, explain why not: ___________________

________________________________________________________________.

If yes, name of court: Second Judicial District Court date petition filed 8/5/08.

Did you receive an evidentiary hearing? ___ Yes X No. Did you appeal to the Nevada Supreme Court? X Yes ___ No. If no, explain why not: _________________________

________________________________________________________________.

If yes, did you raise this issue? X Yes ___ No. If no, explain why not: ___

________________________________________________________________.

Second Post Conviction:

Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus? ___ Yes ___ No. If yes, explain why: ___________________________

_______________________________________________________________.

If yes, name of court: _____________________________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes ___ No. Did you appeal to the Nevada Supreme Court? ___ Yes ___ No. If no, explain why not: __________________

________________________________________________________________.

If yes, did you raise this issue? ___ Yes ___ No. If no, explain why not: ___

________________________________________________________________.

Other Proceedings:

________________________________________________________________.

State concisely every ground for which you claim that the state court conviction and/or sentence is unconstitutional. Summarize briefly the facts supporting each ground. You may attach up to two extra pages stating additional grounds and/or supporting facts. You must raise in this petition all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being litigated in a subsequent action.

GROUND 5

I allege that my state court conviction and/or sentence are unconstitutional, in violation of my 5^th , 6^th , 8^th , and 14^th Amendment right to a fair trial, based on these facts:

Petitioner's conviction was obtained as a result of the prosecutor's misstatements of fact, Berger v. U.S., 295 U.S. 78 (1935). The prosecutor consistently argued that the murder was committed during a robbery that did not occur, as well as argued that the act of pulling a gun from the waistband up to firing position was premeditation. Prosecutorial misconduct deprived petitioner of his constitutional rights. Darden v. Wainwright, 477 U.S. 168 (1986)____________

________________________________________________________________.

Exhaustion of state court remedies regarding Ground

Direct Appeal:

Did you raise this issue on direct appeal from the conviction to the Nevada Supreme Court?

X Yes ___ No. If no, explain why not: ___________________

________________________________________________________________.

First Post Conviction:

Did you raise this issue in a petition for post conviction relief or state petition for habeas corpus?

X Yes ___ No. If no, explain why not: ___________________

________________________________________________________________.

If yes, name of court: Second Judicial District Court date petition filed 8/5/08.

Did you receive an evidentiary hearing? ___ Yes X No. Did you appeal to the Nevada Supreme Court? X Yes ___ No. If no, explain why not: _________________

________________________________________________________________.

If yes, did you raise this issue? X Yes ___ No. If no, explain why not: ___

________________________________________________________________.

Second Post Conviction:

Did you raise this issue in a second petition for post conviction relief or state petition for habeas corpus?

___ Yes ___ No. If yes, explain why: ___________________________.

________________________________________________________________.

If yes, name of court: ___________________________________ date petition filed ___/___/___.

Did you receive an evidentiary hearing? ___ Yes ___ No. Did you appeal to the Nevada Supreme Court? ___ Yes ___ No. If no, explain why not: _________________

________________________________________________________________.

If yes, did you raise this issue? ___ Yes ___ No. If no, explain why not: ___

________________________________________________________________.

Other Proceedings:

________________________________________________________________.

POINTS AND AUTHORITIES GROUND 6

Matthew Tjeltveit's trial counsels' decision to pursue a self-defense theory of the case fell below an objective standard of reasonableness that prejudiced Matthew Tjeltveit in violation of his right to effective assistance counsel under the federal constitution's 5^th , 6^th , 8^th and 14^th amendments.

Matthew Tjeltveit's trial counsel should not have pursued a self-defense theory that suggested Matthew was protecting his child against an unsubstantiated threat that the victim had no present ability to perform at the time the victim uttered the threat. Trial counsel's performance in pursuing a self-defense theory of the case fell below an objective standard of reasonableness that prejudiced Matthew. Instead, trial counsel should have pursued a voluntary manslaughter theory of the case. Trial counsel's ineffective self-defense theory of the case along with trial counsel providing a self-defense jury instruction to the jury prejudiced Matthew and worked to his extreme detriment. But for trial counsel's ineffectiveness in pursuing a self-defense theory of the case that prejudiced Matthew, he would have been acquitted for first-degree murder and instead would have been convicted of voluntary manslaughter.

The State's case that Matthew killed the victim was about as airtight as a case could be because Matthew admitted killing the victim to five separate Individuals, all of whom were Matthew's friends or acquaintances and all of whom were called during the State's case-in-chief. See Trial Transcript of Monday, March 19 and Tuesday March 20, 2007 at 160:10-11, 161:19-23, 167:10-11 (Ashlee Reedy, friend of Matthew), 192:18-20, 194:2-3, 196:21-24 (Jason Holder, friend of Matthew), 274:22-24, 275:1-2, 279:1-24 (Krystal Gari, former live-in girlfriend with Matthew and had son together), 290:22-24, 291:1-4 17-19, Krista Gaddls, acquaintance and on friendly terms with Matthew), and 296:22-24, 298:16-24, 299:1-8, 300:3-10 (Breanne Cambra, formerly engaged to Matthew and still has feelings for Matthew). Matthew also testified and did not deny killing the victim. Id. At 319:3-7.

The trial transcripts for March 19 and 20, 2007 are one volume numbered from page 1-352. The trial transcript for March 21, 2007, the last day of the trial, was prepared by a different court reporter and begins again at page 1.

The sole question for the jury was whether the killing should be punished as first degree murder or manslaughter as self-defense was factually impossible. The jury however never was faced with such a dichotomous decision. Instead, Matthew's trial counsel pursued a self-defense theory of the case that any lawyer objectively looking at the facts of this case should have known would convince no rational juror to acquit Matthew.

Matthew testified and admitted to shooting the victim in the head after he threatened to cut up his son and send his son to him in pieces, in Matthew's own words, he "snapped" and "immediately" shot his erstwhile friend in the face. Id. At 319:3-7. Rather than rebut the contention of voluntary manslaughter, the State's case in chief focused on calling witnesses to whom Matthew admitted killing the victim immediately after he threatened to cut up his son. Ashley Reedy, a friend of Matthew's, testified that Matthew told her that he had shot the victim in the head in response to the victim threatening to cut up his son into pieces. Id. At 169:13-18. Jason Holder, a friend of Matthew's, testified in even more blunt terms, stating that Matthew told him that he "fucked up" and "snapped" and that the victim was dead. Id. At 196:23-24. Notably, in the State's case-in-chief, the State never attempted to impeach any witness that presented Matthew as having only shot the victim in reaction to his threat regarding Matthew's son. Instead, the State focused on showing the jury that Matthew in fact did kill the victim. The State through its own case-in-chief left open i.e. created a factual dispute regarding whether the killing was premeditated and deliberate or the result of a rash impulse where the voice of reason and humanity did not intervene. In short, it was the State that created the factual dispute of whether the victim's murder should be punished as first degree murder or voluntary manslaughter. Yet, trial counsel ignored the weakness (or perhaps invitation) in the State's case to argue voluntary manslaughter and instead pursued a self-defense theory supported by absolutely no evidence at trial.

The prejudice that inured to Matthew is substantial. First degree murder carries a maximum penalty of life without the possibility of parole whereas voluntary manslaughter carries a maximum penalty of 10 years with minimum parole eligibility of 1 year. See NRS 200.0304(b), NRS 200.080.

But for trial counsel's ineffectiveness in pursuing a self-defense theory of the case supported by no evidence, Matthew would have been acquitted of first degree murder and convicted of voluntary manslaughter. If granted an evidentiary hearing, Matthew's trial counsel would testify as follows: He would admit that had he actually thoroughly discussed and reviewed the facts of this case with his client and based upon the standard of what a reasonable lawyer would do, he would have declined to pursue a self-defense theory of the case because no rational jury would have found that Matthew acted in self-defense under the circumstances. Trial counsel would admit that this is the classic case of a factual dispute regarding whether the defendant committed voluntary manslaughter and that but for his ineffectiveness, Matthew would have been acquitted of first degree murder and convicted of manslaughter. Trial counsel would admit that this theory of the case fell below an objective standard of reasonableness and that his theory of the case prejudiced Matthew because self-defense was supported by no evidence, but voluntary manslaughter was supported by ample evidence.

Matthew would testify as follows: Matthew never agreed with his trial counsel to pursue a self-defense theory of the case or any other theory for that matter. In fact, trial counsel never discussed his trial strategy with his client. Had trial counsel thoroughly and properly discussed trial strategy with his client, Matthew would testify that his sole focus at trial would be to convince the jury to acquit him of first-degree murder and convict him of voluntary manslaughter.

POINTS AND AUTHORITIES GROUND 7

Matthew Tjeltveit's trial counsels' failure to ask for a jury Instruction on when Matthew formed the requisite intent to commit the alleged robbery of the victim fell below an objective standard of reasonableness that prejudiced Matthew Tjeltveit In violation of his right to effective assistance counsel under the federal constitution's 5^th , 6^th , 8^th , and 14^th amendments.

Based upon the evidence produced at trial, there was substantial dispute as to whether Matthew shot the victim because of the victim's threat to cut his son up into little pieces or did so to rob the victim of his possessions. This is important because the State proceeded upon alternate theories of first degree murder as allowed by law; felony murder with robbery or attempted robbery being the underlying felony and murder occurring with malice, premeditation and deliberation. See Indictment, filed December 7, 2007, on file herein. It was undisputed that Matthew was in possession the victim's possessions such as his car after the killing took place. The question is whether Matthew formed the intent to rob before or after the killing. Jury instruction 21 defined felony murder in the contest of the State's theory of robbery. Trial counsel however made no request for an instruction that if the intent to commit the robbery or attempted robbery of the victim was formedafter the killing, then the State has not proven that Matthew is guilty of felony murder beyond a reasonable doubt because the requisite intent to commit robbery was not present during the killing. In other words, if the jury found that Matthew did it fact kill the victim in reaction to the victim's comments about his son and only after killing the victim did Matthew panic and take the victim's car, then Matthew could not be guilty as a matter of law of felony murder based upon the State's theory.

Matthew's behavior immediately after the killing supports a theory of an individual who shot the victim impulsively in reaction to the threat he made towards his son and only after panicked and drove off in the victim's car. Matthew first called his friend Jason Holder, who was with his girlfriend Ashlee reedy. Ashlee Reedy initially picked up the phone in the early morning hours immediately after the killing and noted Matthew's panicked voice. See March 19 and March 20, 2007 Trial Transcript at 163:20-23. Matthew's voice was also stressed-out, nervous and scared. Id. At 164:11-15. The state's own question and subsequent answer by Ashlee reedy supports Matthew's potential defense to felony murder that he did not intend to rob the victim but only took the victim's car after he panicked.

Q: So it was in response to that statement by [the victim] about the defendant's children and cutting them into pieces and sending them to him, according to the defendant that caused him to react and shoot the victim in the head.

A: Correct.

Id. At 170:11-15. The State did not produce a single witness that produced a different reason for why Matthew shot the victim in the head as stated by Matthew to any State witness.

The defendant need not be the one to present evidence that supports his theory of defense. Rosas v. State, 122 Nev. 1258, 147 P.3d 1101, 1108 (2006). Trial counsel should have immediately noticed this pattern in the testimony of the State's witnesses and asked for an instruction that the jury make a determination whether Matthew formed the intent to rob before or after the killing and if the intent was formed after that the jury must acquit Matthew of felony murder.

The evidence for traditional first degree murder requiring premeditation, deliberation willfulness and malice aforethought was weak. The State submitted general jury verdict forms without requiring unanimity as to the theory of first degree murder as allowed by Schad v. Arizona, 501 U.S. 524 (1991) and Crawford v. State, 121 Nev. 746, 750, 121 P.3d 582, 586 (2005). It is likely that the jury convicted Matthew of first degree murder based upon felony murder without any consideration of when he formed the intent to rob before or after the killing. But for trial counsel's ineffectiveness in failing to request an instruction regarding a jury determination of when Matthew formed the intent to rob the victim, Matthew would have been acquitted of felony murder. The jury would have also unlikely convicted Matthew of traditional first degree murder and instead convicted Matthew of voluntary manslaughter. Of course, the prosecution is going to disagree. But the point is that it was ultimately for the jury to decide whether or not Matthew formed the Intent to rob before or after the killing and Matthew's ineffective trial counsel prevented the jury from making this determination.

If granted an evidentiary hearing, Matthew would testify that he did not form the intent to take the victim's vehicle untilafter he impulsively shot the victim in the head as a result of the victim threatening to cut up his son. He only took the vehicle after he panicked as a confirmed by the Stat's own witnesses presented during the State's case-in-chief. He would testify credibly and the jury would have believed and acquitted him of first degree murder and convicted him of voluntary manslaughter.

Trial counsel would admit that he should have asked for a jury instruction regarding the precise time of the formation of the intent to take the victims possessions. He would admit that but for his failing to ask for an instruction regarding a jury determination of when his client formed the intent to rob the victim, Matthew would have been acquitted of felony murder and first degree murder and convicted of manslaughter.

POINTS AND AUTHORITIES GROUND 8

Matthew Tjeltveit has a valid appeal deprivation claim under Nevada Rules of Appellate Procedure 4(c) that went Into effect July 1, 2009.

Nevada rule of Appellate Procedure 4(c) allows for the untimely notice of appeal from a judgment of conviction provided a post-conviction petition for writ of habeas corpus has been timely filed and asserts a viable claim that the petitioner was unlawfully deprived of the right to a timely direct appeal.

Matthew filed his original post-conviction petition of august 5, 2009. The Nevada Supreme Court issued the remittitur from Matthew's untimely pro per notice of appeal on January 25, 2008. Matthew petition is therefore timely properly filed in accordance with the provisions of NRS 34.720 and NRS 34.830.

Matthew's trial counsel also unlawfully deprived to his right to directly appeal his very serious conviction of first degree murder with the use of a firearm. If granted an evidentiary hearing, Matthew would testify as follows regarding his appeal deprivation claim. Matthew was told by his trial counsel immediately after sentencing that he would appeal his conviction. Matthew was then immediately after sentencing unable to contact his attorney regarding his appeal because his attorney did not visit him, respond to his letters or accept his phone calls. Matthew then filed a pro per notice of appeal that was dismissed by the Nevada Supreme Court in an unpublished written opinion on December 27, 2007 from which the remittitur issued on January 25, 2008. If allowed to directly appeal his conviction, he would raise the following issues which would likely result in reversal and remand of his case for a new trial.

Plain error and prosecutorial misconduct so infected Matthew's jury instructions that these instructional errors require this court to reverse and remand Matthew's first degree murder conviction with use of a firearm for a new trial. Trial counsel never objected to any jury instructions. This Court must then review the jury instructions for plain error. Garcia v. State, 121 Nev. 327, 334, 113 P.3d 836 840 (2005). This court has a duty to protect Matthew's right to reversal and remand of his case because the errors were so plain and patently prejudicial that this court must sua sponte step in and protect Matthew's right to a fair trial. McKenna v. State, 114 Nev. 1044, 1052, 968 P.2d 739, 745 (1998).

The State proceeded upon alternate theories of first degree murder as allowed by law; felony murder with robbery or attempted robbery being the underlying felony and murder occurring with malice, premeditation and deliberation. See Indictment, filed December 7, 2007, on file herein. When it came time to settle jury instructions at the close of trial, the trial court settled all instructions with the exception of instruction 21, the felony murder jury instruction which the prosecution apparently did not provide to either the court or trial counsel prior to the morning of March 21, 2009, when jury instructions were settled in chambers. See March 21, 2007, trial transcript at 4:20-23 7:7-9. Instruction 21, the felony murder jury instruction, was then produced by the State's attorney in chambers after lunch and prior to afternoon closing arguments. Trial counsel for Matthew did not object to instruction 21. This is despite instruction 21 being an incorrect statement of felony murder as alleged by the State. Id. At 8:1-22. The State proceeded upon alternate theories of first degree murder as allowed by law; felony murder with robbery or attempted robbery being the underlying felony and murder occurring with malice, premeditation and deliberation. See Indictment, filed December 7, 2005, on file herein. Yet, the State's instruction 21 nowhere references any instruction on the elements of attempted robbery. See Jury Instruction 21, filed March 21, 2007, on file herein. Instead State's jury instruction 21 references the robbery or attempted robbery as an element of felony murder and does go on to define robbery but completely leaves out any definition or explanation of the elements of attempted robbery. Id. In fact, nowhere in any of the jury instructions is an attempt under Nevada law properly defined in the context of felony murder and attempted robbery.

The jury cannot logically convict someone of a crime for which they do not know the elements. As a result, Matthew's conviction must be overturned and his case remanded for a new trial with a proper felony murder jury instruction.

This court should also consider the aforementioned instructional error claim in the context of prosecutorial misconduct. First, the Court must determine whether the prosecutor's conduct of submitting an incomplete and hence incorrect jury instruction was improper; and two, the court must consider whether the improper jury instruction submitted by the prosecutor warrants reversal. Valdez v. State, ___ Nev. ___, ___, 196 P.3d 465, 476 (2008). Submitting an improper and incomplete jury instruction is improper. The question then becomes whether an improperly instructed jury reaching a verdict based upon faulty instructions should be overturned and reversed. This question turns on whether the prosecutorial misconduct of improperly instructing a jury on the elements of felony murder as alleged by the State is of a constitutional dimension. If the prosecutor improperly instructing the jury is of a constitutional dimension, then this Court must reverse unless the State demonstrates, beyond a reasonable doubt, that the error did not contribute to the verdict. Id.

The prosecutor submitting an incomplete and improper jury instruction constitutes prosecutorial misconduct of a constitutional dimension that requires reversal of Matthew's murder conviction. Likewise the felony murder jury instruction constitutes plain error that requires reversal. Each claim separately and even more so together combine to render Matthew's murder conviction constitutionally infirm, leaving this court with only to reverse and remand Matthew's case for a new trial. WHEREFORE, petitioner prays that the court will grant him such relief to which he is entitled in this federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by a person in state custody.03/01/2011

_______________________________________ ___________________________ (Name of person who wrote this (Signature of Plaintiff) complaint if not Plaintiff) (Date) _______________________________________ (Signature of attorney, if any) _______________________________________ _______________________________________ _______________________________________ (Attorney's address telephone number)

DECLARATION UNDER PENALTY OF PERJURY

I understand that a false statement or answer to any question in this declaration will subject me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See 28 U.S.C. § 1746 and 18 U.S.C. § 1621.Ely State Prison 03/01/2011 83651 Executed at on . (Location) (Date) ______________ (Signature) (Inmate prison number)

Graph

ORDER

This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review under Rule 4 of the Rules Governing Section 2254 Cases. Following initial review, it appears that the petition is subject to dismissal with prejudice as time-barred for failure to file the petition within the one-year limitation period in 28 U.S.C. § 2244(d)(1). Petitioner therefore will be directed to show cause why the petition should not be dismissed as time-barred.

Background

According to the allegations of the petition, petitioner Matthew Tjeltveit challenges his Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon.

The Court takes judicial notice of the state court procedural history reflected in the January 13, 2011, Order of Affirmance, in No. 55773 in the Supreme Court of Nevada, which is available both on Westlaw and on the online docket records of the state supreme court.

Tjeltveit v. Warden, 2011 WL 222503 (Nev., Jan. 13, 2011). The order can be accessed online, athttp://www.nevadajudiciary.us/index.php/supremecourt, under the "Case Search" link in the upper right.

The judgment of conviction was filed on June 7, 2007.

No notice of appeal was filed within the thirty-day time period for filing a direct appeal. The time to do so expired on Monday, July 9, 2007.

On or about March 1, 2011, petitioner mailed the federal petition to the Clerk of this Court for filing.

Discussion

Pursuant to Herbst v. Cook, 260 F.3d 1039 (9^th Cir. 2001), the Court sua sponte raises the question of whether the petition is time-barred for failure to file the petition within the oneyear limitation period in 28 U.S.C. § 2244(d)(1).

Petitioner therefore must show cause in writing why the petition should not be dismissed with prejudice as time-barred.

In this regard, petitioner is informed that the one-year limitation period may be equitably tolled. Equitable tolling is appropriate only if the petitioner can show "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) ( quoting Pace, 544 U.S. at 418, 125 S.Ct. at 1814). Equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and "the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) ( quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this "extraordinary exclusion." 292 F.3d at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).

Petitioner also is informed that, under certain circumstances, the one-year limitation period may begin running on a later date or may be statutorily tolled. See 28 U.S.C. § 2244(d)(1)(B), (C) (D) (d)(2).

IT THEREFORE IS ORDERED that, within thirty (30) days of entry of this order, petitioner shall SHOW CAUSE in writing why the petition should not be dismissed with prejudice as time-barred. If petitioner does not timely respond to this order, the petition will be dismissed with prejudice as time-barred without further advance notice. If petitioner responds but fails to show with competent evidence that the petition is timely, the action will be dismissed with prejudice.

IT FURTHER IS ORDERED that all assertions of fact made by petitioner must be detailed, must be specific as to time and place, and must be supported by competent evidence. The Court will not consider any assertions of fact that are not specific as to time and place, that are not made pursuant to a declaration under penalty of perjury based upon personal knowledge, and/or that are not supported by competent evidence filed by petitioner in the record in this Court.

The Court will hold the motion for counsel under submission pending petitioner's response to this show cause order. The Court does not find that the interests of justice require the appointment of counsel prior to petitioner's response to the show cause order.

This order does not signify by omission that either the petition or the claims therein otherwise are free of deficiencies. The Court defers consideration of any other deficiencies in the papers presented until after a determination in the first instance as to whether the petition is timely.

Exhibit IN THE SUPREME COURT OF THE STATE OF NEVADA Supreme Court No. 50518

MATTHEW JAMES TJELTVEIT, Appellant, vs. THE STATE OF NEVADA, District Court Case No. CR052796 Respondent.

REMITTITUR

TO: Howard W. Conyers, Washoe District Court Clerk

Pursuant to the rules of this court, enclosed are the following:

Certified copy of Judgment and Opinion/Order.

Receipt for Remittitur.

DATE: January 22, 2008

Tracie Lindeman, Clerk of Court

By:____________________________________________ Deputy Clerk cc (without enclosures): Hon. Steven P. Elliott, District Judge Attorney General Catherine Cortez Masto/Carson City Washoe County District Attorney Richard A. Gammick Matthew James Tjeltveit

RECEIPT FOR REMITTITUR

Received of Tracie Lindeman, Clerk of the Supreme Court of the State of Nevada, the REMITTITUR issued in the above-entitled cause, on _______________. ____________________________ District Court Clerk Other Events 3:08-cv-00054-LRH-VPC Tjeltveit v. McDaniel et al United States District Court District of Nevada Notice of Electronic Filing Case Name: Case Number: 3:08-cv-54 Filer: Document Number: HABEAS The following transaction was entered on 1/28/2008 at 4:09 PM PST and filed on 1/28/2008 Tjeltveit v. McDaniel et al 2 (No document attached) Docket Text:

NOTICE to Plaintiff from USDC: Please be advised that case against defendant McDaniel, et al. has been received and assigned case number 3:08-cv-00054-LRH-VPC. All future papers sent to the court for this case must include this number. Any correspondence with the court should be mailed to the Clerk's Office and not directly to the assigned judges.

This case has been submitted for review and action by a judicial officer. This review process may take several weeks. Plaintiff will be notified as soon as further action has been taken and will receive copy of all orders filed. (no image attached) (KL)

3:08-cv-54 Notice has been electronically mailed to:

3:08-cv-54 Notice has been delivered by other means to:

Matthew Tjeltveit

83651

Ely State Prison

P.O. Box 1989

Ely, NV 89301 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ORDER et al.

MATTHEW TJELTVEIT, ) ) Petitioner, ) 3:08-cv-00054-LRH-VPC ) vs. ) ) E.K. MCDANIEL, , ) ) Respondents. ) ________________________/ Matthew Tjeltveit, a Nevada prisoner, has filed an application for leave to proceed in forma pauperis (docket #1), a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (attached at docket #1), and a motion for appointment of counsel (attached at docket #1).

Based on the information submitted by petitioner regarding his financial status, the application for leave to proceed in forma pauperis will be denied. Petitioner must pay the $5 filing fee.

Petitioner also has asked this court to provide him with appointed counsel to assist with his habeas corpus petition. There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are such that denial of counsel would amount to a denial of due process, and where the petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970).

The petition in this action is organized and raises the issues in a clear and understandable manner. It does not appear that counsel is justified in this instance. The motion shall be denied.

IT IS THEREFORE ORDERED that petitioner's application for leave to proceed in forma pauperis (docket #1) is DENIED. Petitioner shall have thirty (30) days from the entry of this order to have the filing fee of five dollars ($5) sent to the Clerk, as ordered below. If petitioner fails to do so, this action may be dismissed.

IT IS FURTHER ORDERED that the Clerk shall SEND to petitioner two copies of this Order.

IT IS FURTHER ORDERED that petitioner is ordered to arrange to have one copy of this Order sent to the Clerk, with a check for $5 attached. Petitioner may do so by sending a copy of the Order along with a "brass slip" to Inmate Services for issuance of the check.

IT IS FURTHER ORDERED that the Clerk shall FILE AND DOCKET the motion for appointment of counsel (attached at docket #1).

IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel is DENIED.

DATED this 11^th day of April, 2008.

_____________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE Exhibit UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ORDER et al. MATTHEW TJELTVEIT, ) ) Petitioner, ) 3:08-cv-00054-LRH-VPC ) vs. ) ) E.K. MCDANIEL, , ) ) Respondents. ) ________________________/ This action is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 by petitioner Matthew Tjeltveit, a Nevada prisoner. This Court previously ordered the petitioner to show cause why the instant petition for writ of habeas corpus should not be dismissed, as it appeared that petitioner's claims were unexhausted (docket #7). Petitioner has not responded to this Court's order and has not shown that his claims are exhausted, therefore the Court will dismiss the petition without prejudice.

A state prisoner must exhaust all available state remedies prior to filing a federal habeas corpus petition. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509 (1982). The state courts must be given a fair opportunity to act on each claim before those claims are presented in a habeas petition to the federal district court. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). Furthermore, a claim will remain unexhausted until a petitioner has sought review from the highest available state court through direct appeal or collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004). A habeas petitioner must "present the state courts with the same claim he urges upon the federal court" in order to allow a state court to correct violations of federal rights. Picard v. Connor, 404 U.S. 270, 276 (1971); Duncan v. Henry, 513 U.S. 364, 365 (1995).

According to items 3 and 4 of the petition, petitioner did appeal from his conviction, however the appeal was dismissed without a chance to raise any issues, and petitioner did not seek state post-conviction relief. See also pages 4, 6, and 8 of the petition (admitting failure to exhaust grounds for relief). From the face of the petition, therefore, petitioner has admitted that his claims for relief have not yet been exhausted in state court. As all of petitioner's claims remain unexhausted, the petition will be dismissed without prejudice. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (finding that a court need not hold a petition in abeyance pending exhaustion if the petition contains only unexhausted claims).

Furthermore, the Court will deny petitioner a certificate of appealability. In order to proceed with an appeal from this court, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id. The Supreme Court has held that a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Where a court has dismissed a petitioner's habeas corpus petition on procedural grounds, however, the determination of whether a certificate of appealability issues becomes a two-part test. The Supreme Court has stated that under such circumstances:

A COA should issue when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Id. See also Miller-El v. Cockrell, 537 U.S. 322, 337-38 (2003). Therefore, in order to obtain a COA in cases dismissed on procedural grounds, petitioner has the burden of demonstrating both that he was denied a valid constitutional right and that jurists of reason would find it debatable whether the court's procedural ruling was correct. In cases where there is a plain procedural bar to a petitioner's claims and the district court is correct to invoke that procedural bar to dispose of the case, "a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack, 529 U.S. at 484.

In the present case, petitioner's habeas petition is being dismissed without prejudice as the petition contains only unexhausted claims. No reasonable jurist could conclude that this Court's procedural ruling was in error. Petitioner is not entitled to a certificate of appealability.

IT IS THEREFORE ORDERED that the petition (docket #8) is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the clerk shall ENTER JUDGMENT ACCORDINGLY. IT IS FURTHER ORDERED that petitioner is DENIED a certificate of appealability.

DATED this 28^th day of April, 2009.

_____________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE CR-0592796 10 IN THE Second JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF Weshoe Matthew J. Tjeltveit PETITION FOR WRIT E. K. McDaniel OF HABEAS CORPUS (POSTCONVICTION) Case No. Dept. No. , Petitioner, v. Respondent. INSTRUCTIONS:

(1) This petition must be legibly handwritten or typewritten, signed by the petitioner and verified.

(2) Additional pages are not permitted except where noted or with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum.

(3) If you want an attorney appointed, you must complete the Affidavit in Support of Request to Proceed in Forma Pauperis. You must have an authorized officer at the prison complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution.

(4) You must name as respondent the person by whom you are confined or restrained. If you are in a specific institution of the Department of Corrections, name the warden or head of the institution. If you're not in a specific institution of the Department but within its custody, name the Director of the Department of Corrections.

(5) You must include all grounds or claims for relief which you may have regarding your conviction or sentence. Failure to raise all grounds in this petition may preclude you from filing future petitions challenging your conviction and sentence.

(6) You must allege specific facts supporting the claims in the petition you file seeking relief from any conviction or sentence. Failure to allege specific facts rather than just conclusions may cause your petition to be dismissed. If your petition contains a claim of ineffective assistance of counsel, that claim will operate to waive the attorney-client privilege for the proceeding in which you claim your counsel was ineffective.

(7) When the petition is fully completed, the original and one copy must be filed with the clerk of the state district court for the county in which you were convicted. One copy must be mailed to the respondent, one copy to the Attorney General's Office, and one copy to the district attorney of the county in which you were convicted or to the original prosecutor if you are challenging your original conviction or sentence. Copies must conform in all particulars to the original submitted for filing.

PETITION

1. Name of institution and county in which you are presently imprisoned or where and how you are presently restrained of your liberty: Ely State Prison in White Pine County.

________________________________________________________________

2. Name and location of court which entered the judgment of conviction under attack: Second Judicial District Court of the State of Nevada in and for the County of Weshoe, in Rene, Nevada

3. Date of judgment of conviction: 6-7-07________________

4. Case number: CR05-2796________________________________

5. (a) Length of sentence: Life with possibility of parole after 20 years w/like sentence conseevtive for use of Fireanm.

(b) If sentence is death, state any date upon which execution is scheduled: _________________

________________________________________________________________

6. Are you presently serving a sentence for a conviction other than the conviction under attack in this motion? Yes ___ No X

If "yes", list crime, case number and sentence being served at this time: ___________________

________________________________________________________________

7. Nature of offense involved in conviction being challenged:Morder in the First degree.____________________________________________

8. What was your plea? (check one):X

(a) Not guilty (b) Guilty ___ (c) Nolo contendere ___ 9. If you entered a plea of guilty to one count of an indictment or information, and a plea of not guilty to another count of an indictment or information, or if a plea of guilty was negotiated, give details:

________________________________________________________________

10. If you were found guilty after a plea of not guilty, was the finding made by: (check one)X

(a) Jury (b) Judge without a jury ___ 11. Did you testify at the trial? Yes X No ___

12. Did you appeal form the judgment of conviction? Yes X No ___

13. If you did appeal, answer the following:

(a) Name of Court: Nevada Supreme Court______________

(b) Case number or citation: 50518___________________

(c) Result: Dismissed________________________________

IN THE SUPREME COURT OF THE STATE OF NEVADA MATTHEW JAMES TJELTVEIT, No. 50518 Appellant, vs. THE STATE OF NEVADA, Respondent.

ORDER DISMISSING APPEAL

This is a proper person appeal from a judgment of conviction. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge.

This court's preliminary review of this appeal reveals a jurisdictional defect. Specifically, the district court entered the judgment of conviction on June 7, 2007. Appellant did not file the notice of appeal, however, until November 7, 2007, well after the expiration of the thirty-day appeal period prescribed by NRAP 4(b). An untimely notice of appeal fails to vest jurisdiction in this court. Accordingly, we conclude that we lack jurisdiction to consider this appeal, and we

See Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994).

ORDER this appeal DISMISSED.

___________________________, J. Gibbons ___________________________, J. Cherry ___________________________, J. Saitta cc: Hon. Steven P. Elliott, District Judge Matthew James Tjeltveit Attorney General Catherine Cortez Masto/Carson City Washoe County District Attorney Richard A. Gammick Washoe District Court Clerk Exhibit WHEREFORE, petitioner prays that the court grant petitioner relief to which he may be entitled in this proceeding.

EXECUTED at Ely State Prison, on the 17 day of the month ofJuly, of the year 2008.

________________________ Signature of petitioner Ely State Prison Post Office Box 1989 Ely, Nevada 89301-1989 ___________________________________________ Signature of Attorney (if any) ___________________________________________ Attorney for petitioner ___________________________________________ ___________________________________________ Address

VERIFICATION

Under penalty of perjury, the undersigned declares that he is the petitioner named in the foregoing petition and knows the contents thereof, that the pleading is true of his own knowledge, except as to those matters stated on information and belief, and as to such matters he believes them to be true. AFFIRMATION Pursuant to NRS 239B.030 Petition for Writ of Habeas Corpus CR 05-2796 — OR — — OR — UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ORDER et al., ______________________________ Petitioner ______________________________ Attorney for petitioner The undersigned does hereby affirm that the preceding ______________ (Title of Document) filed in District Court Case No. [X] Does not contain the social security number of any person. [] Contains the social security number of a person as required by: A. A specific state or federal law, to wit: ___________________________________________ (State specific law) B. For the administration of a public program or for an application for a federal or state grant. ___________________________________________ ______________________ ____________________ (Signature) (Date) MATTHEW TJELTVEIT, ) ) Petitioner, ) 3:08-cv-00054-LRH-VPC ) vs. ) ) E.K.MCDANIEL, ) ) Respondents, ) _______________________/ Matthew Tjeltveit., a Nevada prisoner, has filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (attached at docket #1) and has paid the appropriate filing fee (docket #5). The petition will be ordered filed, docketed and served upon the respondents, however, the respondents will not yet be required to respond to it.

It appears to the Court that the grounds for relief in the petition are currently unexhausted in state court. Petitioner is advised that he must first present his grounds for relief to a state court before a federal court may review the merits of the issues he raises. To exhaust a claim, petitioner must have "fairly presented" that specific claim to the Supreme Court of Nevada. See Picard v. Conner, 404 U.S. 270, 275-76 (1971); Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9th Cir. 1984). A federal court cannot hear a mixed petition that contains both exhausted and unexhausted claims for habeas corpus relief. Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Szeto v. Rusen, 709 F.2d 1340, 1341 (9th Cir. 1983). After reviewing the petition in this case, it appears to the Court that all of petitioner's claims may be unexhausted.

According to items 3 and 4 of the petition, petitioner did appeal from his conviction, however the appeal was dismissed without a chance to raise any issues, and petitioner did not seek state post-conviction relief. See also pages 4, 6, and 8 of the petition (admitting failure to exhaust grounds for relief). From the face of the petition, therefore, petitioner has admitted that his claims for relief have not yet been exhausted in state court. If this information is inaccurate, then petitioner should file an amended petition showing when and how he exhausted his stated grounds for relief.

IT IS THEREFORE ORDERED that the Clerk shall FILE AND DOCKET the petition for writ of habeas corpus (attached at docket #1).

IT IS FURTHER ORDERED that the Clerk shall SERVE a copy of the petition for writ of habeas corpus (and a copy of this order) upon respondents by certified mail. Respondents shall not answer or otherwise respond to the petition until further order of the Court.

IT IS FURTHER ORDERED that petitioner shall have thirty (30) days in which to file an amended petition showing when and how he exhausted the stated grounds for relief. Petitioner's failure to comply in a timely manner will result in the dismissal of his petition. Petitioner is advised that the Court must dismiss the within petition if petitioner is unable to demonstrate how and when he fully exhausted all claims for relief in his petition.

DATED this 27^th day of June, 2008.***** NEVADA 3:08-cv-00054-LRH-VPC Jury Verdict. Decision by Court. X Decision by Court.

________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE UNITED STATES DISTRICT COURT DISTRICT OF MATTHEW TJELTVEIT, Petitioner, JUDGMENT IN A CIVIL CASE V. CASE NUMBER: E.K. MCDANIEL, et al., Respondents. ___ This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict. ___ This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. This action came to be considered before the Court. The issues have been considered and a decision has been rendered. IT IS ORDERED AND ADJUDGED that the #8 petition is DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that petitioner is DENIED a certificate of appealability.April 28, 2009 LANCE S. WILSON /s/ Kalani Lizares Clerk Deputy Clerk IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE * * * MATTHEW JAMES TJELTVEIT, Petitioner, Case No.: CR05P2796 vs. Dept. No.: 10 E.L. McDANIEL, WARDEN, Respondent. ________________________________/

ORDER GRANTING MOTION TO DISMISS PETITION AND SUPPLEMENTAL PETITIION FOR WRIT OF HABEAS CORPUS (POST-COINVICTION)

Presently before the Court is a Motion to Dismiss Petition and Supplemental Petition for Writ of Habeas Corpus (Post-Conviction), filed by Respondent STATE OF NEVADA (hereafter "Respondent") on January 5, 2010. Following, on January 12, 2010, Petitioner MATTHEW JAMES TJELTVEIT (hereafter "Petitioner") filed an Opposition to Motion to Dismiss Petition and Supplemental Petition for Writ of Habeas Corpus (Post-Conviction). Subsequently, on January 19, 2010, Respondent filed a Reply to Opposition to Motion to Dismiss Petition and Supplemental Petition for Writ of Habeas Corpus (Post-Conviction). Contemporaneously with its Reply, Respondent filed a Request for Submission, submitting the matter for the Court's consideration.

As part of its Motion to Dismiss, Respondent argues that the Court should dismiss Petitioner's Petition because Petitioner failed to timely file said Petition. In his Opposition to Respondent's Motion to Dismiss, Petitioner contends that although he filed his Petition late, pursuant to NRS 43.726(1), he had good cause for his delay, and therefore, dismissal is not warranted.

According to the record before the Court, on June 7, 2007, this Court convicted Petitioner, pursuant to a jury verdict, of first-degree murder with the use of a firearm. Thereafter, on November 7, 2007, Petitioner filed a Notice of Appeal, which the Nevada Supreme Court dismissed on December 27, 2007. Following, on January 22, 2008, the Supreme Court issued its remittitur. Subsequently, on August 5, 2008, Petitioner filed a post-conviction petition for writ of habeas corpus.

A petition for writ of habeas corpus (post-conviction) must be filed within one year after entry of the judgment of conviction or, if an appeal is taken, within one year after the issuance of remittitur. NRS 34.726(1). However, when an appeal is taken, the one-year period to file begins to run from the issuance of remittur only when then direct appeal is filed timely. See Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132, 1133-34 (1998). Furthermore, if the petitioner's petition is untimely, it is procedurally barred and must be dismissed absent a showing of good cause. NRS 34.726(1), NRS 34.810

In making a showing of good cause, a petitioner must demonstrate that the delay was through no fault of his own and that dismissal of the petition as untimely would unduly prejudice petitioner. NRS 34.726(1). The statement of good cause must appear on the face of the petition. NRS 34.735 (requlring a petitioner to state the reason for filing an untimely petitioner in the petition itself). Furthermore, the statement of good cause must allege specific facts that demonstrate the delay was not the fault of petitioner. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2007); see also Thomas v. State, 120 Nev. 37, 44, 83 P.3d 818, 823 (2004) (stating that "a petitioner for post-conviction relief is entitled to an evidentiary hearing only if he supports his claims with specific factual allegations that if true would entitle him to relief"). It is the petitioner who bears the burden of establishing the factual allegations in support of his petition. Id.

A petitioner may establish good cause by showing that he reasonably believed his counsel timely filed an appeal and that the petitioner filed a habeas corpus petition within a reasonable time after learning that a direct appeal had not been filed. Hathaway, 119 Nev. at 255, 71 P.3d at 508.

In the present matter, it is undisputed that Petitioner failed to file timely, his direct appeal with the Nevada Supreme Court. As such, the time Petitioner had to file his Petition for Habeas Corpus (Post-Conviction) was one year from the date this Court entered its judgment of conviction. NRS 34.726(1). Furthermore, it is undisputed that Petitioner failed to file his Petition for Writ of Habeas Corpus (Post-Conviction) within one year following this Court's entry of the judgment of conviction. Therefore, Petitioner's Petition for Writ of Habeas Corpus was untimely absent a showing of good cause. Id.

Upon examination by the Court, the Court does not believe Petitioner plead sufficient facts that would permit this Court to make a determination as to the existence of good cause regarding Petitioner's delay. Specifically, Petitioner never specified when he attempted to contact his counsel, nor when and how Petitioner first learned his counsel failed to file timely a direct appeal. Without knowledge of this information, the Court cannot determine whether Petitioner's delay in filing his Petition was reasonable.

Furthermore, based on the record before the Court, Petitioner was notified by the Supreme Court on December 27, 2007, that his direct appeal was rejected. Therefore, Petitioner still had more than five months to file timely his Petition for Writ of Habeas Corpus (Post-Conviction). However, Petitioner did not file his Petition until more than seven months following the Supreme Court's dismissal of Petitioner's appeal. Given this time period, even if an unlawful impediment prevented Petitioner from timely filing a direct appeal, the Court does not believe that such an impediment affected Petitioner's ability to file timely his Petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007). NOW, THEREFORE, IT IS HEREBY ORDERED that Respondent's Motion to Dismiss Petition and Supplemental Petition for Writ of Habeas Corpus (Post-Conviction) is GRANTED. IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus (Post-Conviction) is DISMISSED. IT IS FINALLY ORDERED that Petitioner's Supplement to Petition for Writ of Habeas Corpus is DISMISSED. DATED this 4 day of February, 2010.

_____________________ STEVEN P. ELLIOTT District Judge IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE *** MATTHEW JAMES TJELTVEIT, Petitioner, CASE NO: CR05P2796 VS. DEPT. NO.: 10 THE STATE OF NEVADA, Respondent, _____________________________/

NOTICE OF ENTRY OF ORDER

PLEASE TAKE NOTICE that on February 4, 2010 the Court entered a decision or Order in this matter, a true and correct copy of which is attached to this notice.

You may appeal to the Supreme Court from the decision or order of the Court. If you wish to appeal, you must file a notice of appeal with the Clerk of this Court within thirty-Three (33) days, after the date this notice is mailed to you. This notice was mailed on the 24th day of March, 2010.HOWARD W. CONYERS

Clerk of the Court By ___________________ Deputy Clerk IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE * * * MATTHEW JAMES TJELTVEIT, Petitioner, Case No.: CR05P2796 vs. Dept. No.: 10 E.L McDANIEL, WARDEN, Respondent. _________________________________/

ORDER GRANTING MOTION TO DISMISS PETITION AND SUPPLEMENTAL PETITION FOR WRIT OF HABEAS CORPUS (POST-COINVICTION)

A petition for writ of habeas corpus (post-conviction) must be filed within one year after entry of the judgment of conviction or, if an appeal is taken, within one year after the issuance of remittitur. NRS 34.726(1). However, when an appeal is taken, the one-year period to file begins to run from the issuance of remittur only when then direct appeal is filed timely. See Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132; 1133-34 (1998). Furthermore, if the petitioner's petition is untimely, it is procedurally barred and must be dismissed absent a showing of good cause. NRS 34.726(1), NRS 34.810

In making a showing of good cause, a petitioner must demonstrate that the delay was through no fault of his own and that dismissal of the petition as untimely would unduly prejudice petitioner. NRS 34.726(1). The statement of good cause must appear on the face of the petition. NRS 34.735 (requiring a petitioner to state the reason for filing an untimely petitioner in the petition itself). Furthermore, the statement of good cause must allege specific facts that demonstrate the delay was not the fault of petitioner. See Hathaway v. State, 119 Nev. 248, 252-53, 71 P.3d 503, 506 (2007); see also Thomas v. State, 120 Nev. 37, 44, 83 P.3d 818, 823 (2004) (stating that "a petitioner for post-conviction relief is entitled to an evidentiary hearing only if he supports his claims with specific factual allegations that if true would entitle him to relief"). It is the petitioner who bears the burden of establishing the factual allegations in support of his petition. Id.

In the present matter, it is undisputed that Petitioner failed to file timely, his direct appeal with the Nevada Supreme Court. As such, the time Petitioner had to file his Petition for Habeas Corpus (Post-Conviction) was one year from the date this Court entered its judgmentof conviction. NRS 34.726(1). Furthermore, it is undisputed that Petitioner failed to file his Petition for Writ of Habeas Corpus (Post-Conviction) within one year following this Court's entry of the judgment of conviction. Therefore, Petitioner's Petition for Writ of Habeas Corpus was untimely absent a showing of good cause. Id.

_____________________ STEVEN P. ELLIOTT District Judge $2515 Aziz N. Merchant, Esq. Nevada Bar No.: 10148 Merchant Law Firm, Ltd. 100 N. Arlington Ave., Suite 290 Reno, NV 89501 Ph: 775-337-8400 Fax: 775-337-8401 Attorney for Petitioner Matthew James Tjeltveit IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE Case No.: CR05P2796 MATTHEW JAMES TJELTVEIT, Dept: 10 Petitioner, vs. E.K. MCDANIEL, WARDEN, ELY STATE PRISON, and; THE STATE OF NEVADA, Respondents. __________________________________

NOTICE OF APPEAL

Notice is hereby given that Matthew James Tjeltveit, petitioner above-named, hereby appeals to the Supreme Court of Nevada from an Order granting the State's motion to dismiss his post-conviction petition on February 4, 2010. Notice of entry of the court's order was served by the district court clerk pursuant to NRS 34.575 and NRS 34.830 on March 24, 2010.

Affirmation Pursuant to NRS 239B. 030

The undersigned does hereby affirm that the preceding document does not contain the social security number of any person. /s/ Aziz N. Merchant APPELLANT'S OPENING BRIEF APPEAL FROM A DENIAL OF A POST-CONVICTION PETITION Second Judicial District State of Nevada The Honorable Steven P. Elliott Presiding Attorney for Appellant Attorney for Respondent ^th

Dated: April 6, 2010 X Aziz N. Merchant, Esq. Nevada Bar No.: 10148 Merchant Law Firm, Ltd. 100 N. Arlington Ave., Suite 290 Reno, NV 89501 Ph: 775-337-8400 Fax: 775-337-8401 IN THE SUPREME COURT OF THE STATE OF NEVADA Case No.: 55773 MATTHEW JAMES TJELTVEIT, APPELLANT, VS. E.K. MCDANIEL, WARDEN, ELY STATE PRISON; AND THE STATE OF NEVADA RESPONDENTS. _______________________________________ Aziz Neal Merchant, ESQ. Joseph R. Plater, ESQ. NV Bar No. 10148 Appellate Deputy, NV Bar No. 2771 Washoe County District Attorney's Office Merchant Law Firm, LTD. 100 N. Arlington Ave., Suite 290 1 South Sierra St., 7 floor Reno, NV 89501 PO BOX 30083 775-337-8400 Reno, NV 89520 775-337-5751

34.726^th ^th ^th ^th ^th ^th ^th ^th Table of Contents ...........................................................................ii Table of Authorities ....................................................................... iv Jurisdictional Statement .................................................................... v Statement of the Issues ..................................................................... v Statement of the Case ....................................................................... 1 Statement of the Facts ...................................................................... 1 Summary of the Argumen ..................................................................... 4 Argument .................................................................................... 5 A. The district court erred in ruling that Matthew did not plead good cause to excuse his procedural default for filing his post-conviction petition about two-months late when Matthew properly pled good cause for the delay under NRS (1) on the face of his petition and supplemental petition in that he reasonably believed his counsel had filed an appeal on his behalf and Matthew did in fact file his habeas corpus petition within a reasonable time after learning that his counsel had not filed a direct appeal..... 5 B. The district court erred in dismissing Matthew's claim that his trial counsel Calvert's decision to pursue a self-defense theory of the case fell below an objective standard of reasonableness that prejudiced Matthew in violation of his right to effective assistance counsel under the federal constitution's 5, 6, 8 and 14 amendments...... 9 C. Matthew's trial counsel Calvert's failure to ask for a jury instruction on when Matthew formed the requisite intent to commit the alleged robbery of the victim fell below an objective standard of reasonableness that prejudiced Matthew in violation of his right to effective assistance counsel under the federal constitution's 5, 6, 8 and 14 amendments ............................................................................ 13 D. Matthew has a valid appeal deprivation claim under Nevada Rules of Appellate Procedure 4(c) that went into effect July 1, 2009 ......................................... 16 Conclusion ................................................................................. 20

TABLE OF AUTHORITIES CASES

Browning v. State ___ Nev. ___ 188 P.3d 60 70 Crawford v. State 121 Nev. 746 750 121 P.3d 582 586 Garcia v. State 121 Nev. 327 334 113 P.3d 836 840 Hargrove v. State 100 Nev. 498 502 686 P.2d 222 225 Hathaway v. State 119 Nev. 248 71 P.3d 503 Keife v. Logan 119 Nev. 372 374 75 P.3d 357 359 Loveland v. Hatcher 231 F.3d 640 644 ^th Mazzan v. Warden 112 Nev. 838 842 921 P.2d 920 922 McKenna v. State 114 Nev. 1044 1052 968 P.2d 739 745 Rosas v. State 122 Nev. 1258 147 P.3d 1101 1108 Schad v. Arizona 501 U.S. 524Strickland v. Washington 466 U.S. 668 687-688 Valdez v. State ___ Nev. ___ 196 P.3d 465 476 STATUTES 200.080 34.575 34.726RULES , , ___, , (2008) ....... 6 , , , , (2005) .... 15 , , , (2005) ....... 17 , , , , (1984) ..... 9 , , (2003) ....... 3, 6, 7, 8 , , , , (2003) ......... 6 , , (9 Cir. 2000) ............. 6 , , , , (1996) ..... 17 , , , , (1998) ... 17 , , , (2006) ......... 14 , (1991) ............................. 15 , , (1984) ............. 9 , , ___, , (2008) ...... 19 NRS 200.0304(b) ......................................................... 10 NRS ............................................................. 10 NRS (1) ............................................................ v NRS (1) ......................................................... 8, 9 NRAP 4(b) ................................................................ v NRAP 4(c) ..................................................... 4, 5, 15, 18

JURISDICTIONAL STATEMENT

This is an appeal from a denial of a post-conviction petition. The district court clerk served notice of entry of the district court's order on March 24, 2010. V2 JA 450. A notice of appeal was timely filed on April 6, 2010. V2 JA 457. This Court has jurisdiction pursuant to NRAP 4(b) and NRS 34.575(1).

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

1. Did the district court err in ruling that Matthew did not plead good cause to excuse his procedural default for filing his post-conviction petition about two-months late when Matthew properly pled good cause for the delay under NRS 34.726(1) on the face of his petition and supplemental petition in that he reasonably believed his counsel had filed an appeal on his behalf and Matthew did in fact file his habeas corpus petition within a reasonable time after learning that his counsel had not filed a direct appeal?

2. Did the district court err in dismissing Matthew's claim that his trial counsel Calvert's decision to pursue a self-defense theory of the case fell below an objective standard of reasonableness that prejudiced Matthew in violation of his right to effective assistance counsel under the federal constitution's 5th, 6th, 8th and 14th amendments?

3. Did Matthew's trial counsel Calvert's failure to ask for a jury instruction on when Matthew formed the requisite intent to commit the alleged robbery of the victim fell below an objective standard of reasonableness that prejudiced Matthew in violation of his right to effective assistance counsel under the federal constitution's 5th, 6th, 8th and 14th amendments?

4. Does Matthew have a valid appeal deprivation claim under Nevada Rules of Appellate Procedure 4(c) that went into effect July 1, 2009?

Id pro per pro per

STATEMENT OF THE FACTS

Matthew was charged by indictment with murder with the use of a firearm on December 7, 2005. V1 JA 1. Attorney Calvert represented Matthew during trial. V1 JA 5. During trial the State produced five separate witnesses, all of whom recounted to the jury that Matthew admitted to shooting the victim after the victim threatened to chop his son up into little pieces and mail him to Matthew. V1 JA 78-79, 85. (Ashlee Reedy, friend of Matthew), V1 JA 110, 112, 114 (Jason Holder, friend of Matthew), VI JA 192-193, 196-197. (Krystal Gari, former live-in girlfriend with Matthew and had son together), V1 JA 208-209. (Krista Gaddis, acquaintance and on friendly terms with Matthew), and V1 JA 214, 216-218, (Breanne Cambra, formerly engaged to Matthew and still has feelings for Matthew). Jason Holder, a friend of Matthew, testified in the most blunt terms, stating that Matthew told him that he "fucked up" and "snapped" and that the victim was dead. V1 JA 114. Matthew first called his friend Jason Holder, who was with his girlfriend Ashlee Reedy, after the killing. Ashlee Reedy initially picked up the phone in the early morning hours immediately after the killing and noted Matthew's panicked, stressed-out, nervous and scared voice. V1 JA 81-82. The State asked Ahslee Reedy, to whom Matthew confided immediately after the killing: "Q: So it was in response to that statement by [the victim] about the defendant's children and cutting them into pieces and sending them to him, according to the defendant, that caused him to react and shoot the victim in the head. Ashlee answered "A: Correct." VI JA 88. The State never attempted in their case-in-chief to impeach any witness that presented Matthew as having only shot the victim in reaction to the victim's threat against Matthew's son. Instead, the State focused on showing the jury that Matthew in fact did kill the victim in reaction to a threat against Matthew's son and presented witnesses consistent with that theory. See generally, V1 JA 8-229, V2 JA 230-269. Matthew also testified and did not deny killing the victim. V2 JA 237. Matthew also never disputed that he was in possession of the victim's possessions such as his car after the victim's death. V2 JA 242.

When settling jury instructions, the prosecutor submitted a felony murder jury instruction that failed to define attempted robbery as alleged in the State's indictment. V2 JA 358. Matthew's trial attorney Calvert did not object to any jury instructions and did not object specifically to the felony murder jury instruction. V2 JA 276-277. A self-defense jury instruction was also submitted to the jury despite the lack of any evidence. V2 JA 367-368

Matthew was convicted pursuant to jury verdict of first-degree murder with the use of a firearm on June 7, 2007. V2 JA 386. Matthew's trial attorney Calvert agreed to file Matthew's appeal but did not. Matthew attempted but was unable to contact his attorney through collect calls and letters sentencing. V2 JA 403, 419. Matthew then filed an untimely pro per notice of appeal that this Court dismissed on December 27, 2007. V2 JA 388, 392. Matthew then filed a habeas petition on August 5, 2008, about two-months past the timely one-year deadline contained in NRS 34.726(1). The Court appointed counsel, who argued in a supplement that Matthew had pled good cause to overcome his procedural default in compliance with Hathaway v. State, 119 Nev. 248, 71 P.3d 503 (2003), based upon an appeal deprivation claim. V2 JA 410, 419. Matthew also argued that trial counsel Calvert was ineffective and prejudicial for arguing his case as self-defense as opposed to voluntary manslaughter, for failing to request a jury instruction on when Matthew formed the intent to rob the victim and finally, for unlawfully depriving Matthew of a direct appeal pursuant to NRAP 4(c). V2 JA 413-422. The State filed a motion to dismiss with Matthew opposing. The State replied. V2 JA 423, 430,437. The district court then dismissed the petition as procedurally barred and did not consider any of Matthew's claims on the merits. This timely appeal followed. V2 JA 457.

SUMMARY OF THE ARGUMENT

The district court erred in dismissing Matthew's petition as procedurally defaulted because he filed his petition about two-months late. Matthew pled a valid appeal deprivation claim in compliance with Hathaway v. State, 119 Nev. 248, 71 P.3d 503 (2003) to excuse his procedural default alleging that his attorney agreed but failed to file a direct appeal. V2 JA 403, 419. Matthew then filed a habeas petition about two-months late, far sooner than the petitioner in Hathaway, who filed his petition over a year past the deadline for filing a timely habeas petition. The district court likewise erred in failing to consider Matthew petition on the merits, which alleged several theories of prejudicial ineffective assistance of counsel and a valid appeal deprivation claim under NRAP 4(c). Matthew's trial attorney Calvert was ineffective for pursuing a self-defense theory of the case when he should have pursued a voluntary manslaughter theory. At trial, the State produced five witnesses who testified that Matthew impulsively shot the victim in reaction to his threat to chop up Matthew's son into little pieces and mail his son to him. V1 JA 78-79, 85. (Ashlee Reedy, friend of Matthew), V1 JA 110, 112, 114 (Jason Holder, friend of Matthew), V1 JA 192-193, 196-197. (Krystal Gari, former live-in girlfriend with Matthew and had son together), V1 JA 208-209. (Krista Gaddis, acquaintance and on friendly terms with Matthew), and V1 JA 214, 216-218, (Breanne Cambra, formerly engaged to Matthew and still has feelings for Matthew). Matthew also testified and did not deny killing the victim. V2 JA 237. Calvert was likewise ineffectively prejudicial for failing to request an instruction on afterthought robbery. Matthew admitted to being in possession of the victim's possessions after his murder but testified that he shot the victim, not to rob, but only in reaction to the victim's threat against his son. V2 JA 237. Lastly, Matthew raised a valid appeal deprivation claim under NRAP 4(c), alleging that the prosecutor failed to submit a proper felony murder instruction, completely omitted the definition of attempted robbery from the felony murder instruction and thereby committed prosecutorial conduct of a constitutional dimension. V2 JA 418. The erroneous felony murder jury instruction was plain error and was not harmless beyond a reasonable doubt.

Matthew requests reversal and remand with the district court ordered to conduct an evidentiary hearing on his habeas petition.

ARGUMENT

A. THE DISTRICT COURT ERRED IN RULING THAT MATTHEW DID NOT PLEAD GOOD CAUSE TO EXCUSE HIS PROCEDURAL DEFAULT FOR FILING HIS POST-CONVICTION PETITION ABOUT TWO-MONTHS LATE WHEN MATTHEW PROPERLY PLED GOOD CAUSE FOR THE DELAY UNDER NRS 34.726(1) ON THE FACE OF HIS PETITION AND SUPPLEMENTAL PETITION IN THAT HE REASONABLY BELIEVED HIS COUNSEL HAD FILED AN APPEAL ON HIS BEHALF AND MATTHEW DID IN FACT FILE HIS HABEAS CORPUS PETITION WITHIN A REASONABLE TIME AFTER LEARNING THAT HIS COUNSEL HAD NOT FILED A DIRECT APPEAL.

"A district court's findings of fact are entitled to deference and will not be disturbed on appeal if they are supported by substantial evidence." Browning v. State, ___ Nev. ___, ___, 188 P.3d 60, 70 (2008). "However, the district court's conclusions of law are reviewed de novo." Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003).

In Hathaway v. State, 119 Nev. 248, 71 P.3d 503 (2003), this Court adopted the 9^th Circuit test in Loveland v. Hatcher, 231 F.3d 640, 644 (9^th Cir. 2000), holding that "a petitioner can establish good cause for the delay under NRS 34.726(1) if the petitioner establishes that the petitioner reasonably believed that counsel had filed an appeal and that the petitioner filed a habeas corpus petition within a reasonable time after learning that a direct appeal had not been filed." Hathaway, 119 Nev. at 255, 71 P.3d at 508.

Matthew properly pled good cause in both his original and supplemental petition but the district court dismissed his petition as failing to plead good cause in compliance withHathaway because Matthew "never specified when he attempted to contact his counsel [Calvert], nor when and how [Matthew] first learned his counsel failed to file timely a direct appeal." The district court went on to state that "[w]ithout knowledge of this information, the court cannot determine whether [Matthew's] delay in filing his Petition was reasonable." V2 JA 447. The district court appears to have imposed its own standard in determining whether Matthew delay was reasonable based upon the pled facts without any reference to the actual standard. Loveland, as adopted in Hathaway, only requires that Matthew establish he reasonably believed that his counsel Calvert would file a direct appeal on his behalf and that Matthew filed a habeas corpus petition within a reasonable time after learning that a direct appeal had not been filed. Hathaway, 119 Nev. at 255, 71 P.3d at 508. In Matthew's original petition, Matthew pled that he requested Calvert appeal his conviction. Calvert agreed to appeal his conviction but then in fact did not appeal his conviction. 2 JA 403. In Matthew's supplemental petition, Matthew pled that his trial counsel Calvert unlawfully deprived him of his right to directly appeal his very serious first-degree murder with the use of a firearm conviction. Matthew pled that if granted an evidentiary hearing, Matthew would testify regarding his appeal deprivation claim as follows: Calvert told Matthew immediately after sentencing that he would appeal his conviction. Matthew then immediately after sentencing was unable to contact Calvert regarding his appeal because his attorney did not visit him, respond to his letters or accept his phone calls. V2 JA 419.

Matthew then did plead that he attempted to contact his counsel through phone calls and letters that went unanswered. This directly contradicts the district court's findings regarding attorney/client contact and thus the district court's findings are not supported by substantial evidence. Regarding the reasonable belief requirement of Hathaway, Matthew did plead that he reasonably believed that his trial counsel Calvert did file a direct appeal because Calvert told him he would file an appeal. This of course assumes that when an attorney tells a client he is going to do something, he in fact will truthfully do as he states.

Based upon Hathaway, Matthew also filed his habeas petition within a reasonable time after learning that his trial counsel Calvert did not file a direct appeal. In Hathaway, the petitioner Hathaway was convicted pursuant to guilty plea of, among other crimes, one-count of first-degree murder and sentenced to what amounted to life with the possibility of parole on December 11, 1998. On November 6, 2001, Hathaway filed a pro per habeas petition. This was over two-years after his judgment of conviction issued and over one-year past the deadline for filing a timely habeas petition per NRS 34.726(1). In spite of Hathaway pleading guilty pursuant to guilty plea — and as a practical, realistic matter not likely to get any relief on direct appeal from his judgment of conviction — and also in spite of filing his pro per habeas petition over one-year past the deadline for filing a timely habeas petition as contained in NRS 34.726(1), this Court remanded Hathaway's petition for an evidentiary hearing.Hathaway, 119 Nev. at 253, 71 P.3d at 505. Matthew in contrast only filed his pro per habeas petition about two-months late, as Matthew's judgment of conviction issued on June 7, 2007 and Matthew filed his pro per habeas petition on August 5, 2008. V2 JA 386, 397. Matthew was also convicted pursuant to jury verdict, not guilty plea, and is likely to receive relief through the claims raised in his supplemental habeas corpus petition.

In conclusion, the facts of Hathaway are nearly identical to Matthew's case. In Hathaway, the petitioner alleged that he requested his attorney file an appeal, the petitioner's attorney affirmatively indicated that he would file an appeal, he believed that his attorney had filed an appeal on his behalf and that he filed his habeas petition within a reasonable time after learning that his attorney had not filed an appeal. On these facts, the Nevada Supreme Court reversed and remanded Hathaway's petition for an evidentiary hearing on whether Hathaway established good cause to excuse his procedural default because these pled facts, if true, would excuse his procedural default. Hathaway, 119 Nev. at 254-55, 71 P.3d at 507-508. In Matthew's case, Matthew did plead facts analogous to these as discussed above. Consequently, Matthew is entitled to an evidentiary hearing on whether his alleged procedural default is excused under NRS 34.726(1). Moreover, Matthew would also be unduly prejudiced because Matthew raised the following post-conviction claims set out below that would entitle Matthew to relief from his first-degree murder conviction. All of these claims were properly raised in the district court but the district court declined to consider them because the district court incorrectly found Matthew's habeas petition to be procedurally defaulted. V2 JA 413, 445.

B. THE DISTRICT COURT ERRED IN DISMISSING MATTHEW'S CLAIM THAT HIS TRIAL COUNSEL CALVERT'S DECISION TO PURSUE A SELF-DEFENSE THEORY OF THE CASE FELL BELOW AN OBJECTIVE STANDARD OF REASONABLENESS THAT PREJUDICED MATTHEW IN VIOLATION OF HIS RIGHT TO EFFECTIVE ASSISTANCE COUNSEL UNDER THE FEDERAL CONSTITUTION'S 5^TH , 6^TH , 8^TH , AND 14^TH , AMENDMENTS.

To state a claim for relief based upon ineffective assistance of counsel requires both deficient performance and prejudice.Strickland v. Washington, 466 U.S. 668, 687-688 (1984). Both components must be shown and an insufficient showing on either prong precludes relief. Strickland, 466 U.S. at 697. A petitioner is only entitled to an evidentiary hearing on claims supported by specific facts not belied by the record, which if true, would entitle the petitioner to relief. Hargrove v. State, 100 Nev. 498, 502, 686 P.2d 222, 225 (1984).

This claim was properly pled in the supplement in the district court. V2 JA 413-416.

Matthew's trial counsel should not have pursued a self-defense theory that suggested Matthew was protecting his child against an unsubstantiated threat that the victim had no present ability to perform at the time the victim uttered the threat. Instead, trial counsel should have pursued a voluntary manslaughter theory that would have result in Matthew being acquitted of first-degree murder and convicted of voluntary manslaughter. Calvert's performance in pursuing a self-defense theory of the case fell below an objective standard of reasonableness that prejudiced Matthew. Instead, Calvert should have pursued a voluntary manslaughter theory of the case. Calvert's ineffective self-defense theory of the case along with trial counsel providing a self-defense jury instruction to the jury prejudiced Matthew. But for Calvert's ineffectiveness in pursuing a self-defense theory of the case that prejudiced Matthew, he would have been acquitted of first-degree murder and instead would have been convicted of voluntary manslaughter. The prejudice that inured to Matthew is substantial. First degree murder carries a maximum penalty of life without the possibility of parole whereas voluntary manslaughter carries a maximum penalty of 10 years with minimum parole eligibility of 1 year.See NRS 200.0304(b), NRS 200.080.

The State's case that Matthew killed the victim was about as airtight as a case could be because Matthew admitted killing the victim to five separate individuals, all of whom were Matthew's friends or acquaintances and all of whom were called during the State's case-in-chief. V1 JA 78-79, 85. (Ashlee Reedy, friend of Matthew), V1 JA 110, 112, 114 (Jason Holder, friend of Matthew), V1 JA 192-193, 196-197. (Krystal Gari, former live-in girlfriend with Matthew and had son together), V1 JA 208-209. (Krista Gaddis, acquaintance and on friendly terms with Matthew), and V1 JA 214, 216-218, (Breanne Cambra, formerly engaged to Matthew and still has feelings for Matthew). Matthew also testified and did not deny killing the victim. V2 JA 237.

The sole question for the jury was whether the killing should be punished as first-degree murder or manslaughter as self-defense was factually impossible. The jury however never was faced with such a dichotomous decision. Instead, Matthew's trial counsel pursued a self-defense theory of the case that any lawyer objectively looking at the facts of this case should have known would convince no rational juror to acquit Matthew.

Matthew testified and admitted to shooting the victim in the head after he threatened to cut up his son and send his son to him in pieces. In Matthew's own words, he "snapped" and "immediately" shot his erstwhile friend in the face. V2 JA 237. Rather than rebut the contention of voluntary manslaughter, the State's case-in-chief focused on calling witnesses to whom Matthew admitted killing the victim immediately after he threatened to cut up his son. Ashley Reedy, a friend of Matthew's, testified that Matthew told her that he had shot the victim in the head in response to the victim threatening to cut up his son into pieces. V1 JA 87. Jason Holder, a friend of Matthew, testified in even more blunt terms, stating that Matthew told him that he "fucked up" and "snapped". V1 JA 114. The State never attempted in their case-in-chief to impeach any witness that presented Matthew as having only shot the victim in reaction to his threat regarding Matthew's son. Instead, the State focused on showing the jury that Matthew in fact did kill the victim. The State through its own case-in-chief left open i.e. created a factual dispute regarding whether the killing was premeditated and deliberate or the result of a rash impulse where the voice of reason and humanity did not intervene. In short, it was the State that created the factual dispute of whether the victim's murder should be punished as first-degree murder or voluntary manslaughter. Yet, trial counsel ignored the weakness (or perhaps invitation) in the State's case to argue voluntary manslaughter and instead pursued a self-defense theory supported by absolutely no evidence at trial.

But for trial counsel's ineffectiveness in pursuing a self-defense theory of the case supported by no evidence, Matthew would have been acquitted of first degree murder and convicted of voluntary manslaughter. If granted an evidentiary hearing, Matthew's trial counsel Calvert would testify as follows: Calvert would admit that had he actually discussed and reviewed the facts of this case with Matthew, and based upon the standard of what a reasonable lawyer would do, he would have declined to pursue a self-defense theory of the case because no rational jury would have found that Matthew acted in self-defense under these circumstances. Calvert would admit that that this is the classic case of a factual dispute regarding whether the defendant committed voluntary manslaughter and that but for his ineffectiveness, Matthew would have been acquitted of first degree murder and convicted of manslaughter. Trial counsel would admit that his theory of the case fell below an objective standard of reasonableness and that his theory of the case prejudiced Matthew because self-defense was supported by no evidence, but voluntary manslaughter was supported by ample evidence.

Matthew would testify as follows: Matthew never agreed with Calvert to pursue a self-defense theory of the case or any other theory for that matter. In fact, Calvert never discussed his trial strategy with his client. Had trial counsel thoroughly and properly discussed trial strategy with Matthew, Matthew would testify that his sole focus at trial would be to convince the jury to acquit him of first-degree murder and convict him of voluntary manslaughter.

C. MATTHEW'S TRIAL COUNSEL CALVERT'S FAILURE TO ASK FOR A JURY INSTRUCTION ON WHEN MATTHEW FORMED THE REQUISITE INTENT TO COMMIT THE ALLEGED ROBBERY OF THE VICTIM FELL BELOW AN OBJECTIVE STANDARD OF REASONABLENESS THAT PREJUDICED MATTHEW IN VIOLATION OF HIS RIGHT TO EFFECTIVE ASSISTANCE COUNSEL UNDER THE FEDERAL CONSTITUTION'S 5^TH , 6^TH , 8^TH , AND 14^TH , AMENDMENTS.

Based upon the evidence produced at trial, there was a substantial dispute as to whether Matthew shot the victim because of the victim's threat to cut his son up into little pieces or did so to rob the victim of his possessions. This is important because the State proceeded upon alternate theories of first degree murder as allowed by law; felony murder with robbery or attempted robbery being the underlying felony and murder occurring with malice, premeditation and deliberation. V1 JA 1. Matthew never disputed that he was in possession of the victim's possessions such as his car after the killing. V2 JA 242. The question is whether Matthew formed the intent to rob before or after the killing. Jury instruction 21 defined felony murder in the context of the State's theory of robbery. V2 JA 358. Trial counsel however made no request for an instruction that if the intent to commit the robbery or attempted robbery of the victim was formed after the killing, then the State has not proven that Matthew is guilty of felony murder beyond a reasonable doubt because the requisite intent to commit robbery was not present during the killing. In other words, if the jury found that Matthew did it fact kill the victim in reaction to the victim's comments about his son and only after killing the victim did Matthew panic and take the victim's car, then Matthew could not be guilty as a matter of law of felony murder based upon the State's theory.

This claim was properly pled in a supplement in the district court. V2 JA 416-418.

Matthew's behavior immediately after the killing supports the theory that Matthew shot the victim impulsively in reaction to the victim's threat towards his son and only after did Matthew panic and drive off in the victim's car. Matthew first called his friend Jason Holder, who was with his girlfriend Ashlee Reedy. Ashlee Reedy initially picked up the phone in the early morning hours immediately after the killing and noted Matthew's panicked voice. V1 JA 81. Matthew's voice was also stressed-out, nervous and scared. V1 JA 82. The State's own question and subsequent answer by Ahslee Reedy supports Matthew's potential defense to felony murder that he did not intend to rob the victim but only took the victim's car after he panicked.

Q: So it was in response to that statement by [the victim] about the defendant's children and cutting them into pieces and sending them to him, according to the defendant, that caused him to react and shoot the victim in the head.

A: Correct.

V1 JA 88. The State did not produce a single witness that produced a different reason for why Matthew shot the victim.

The defendant need not be the one to present evidence that supports his theory of defense. Rosas v. State, 122 Nev. 1258, 147 P.3d 1101, 1108 (2006). Calvert should have immediately noticed this pattern in the testimony of the State's witnesses and asked for an instruction that the jury make a determination whether Matthew formed the intent to rob before or after the killing.

The evidence for traditional first-degree murder requiring premeditation, deliberation, willfulness and malice aforethought was weak. The State submitted general jury verdict forms without requiring unanimity as to the theory of first-degree murder as allowed by Schad v. Arizona, 501 U.S. 524 (1991) and Crawford v. State, 121 Nev. 746, 750, 121 P.3d 582, 586 (2005). It is likely that the jury convicted Matthew of first-degree murder based upon felony murder without any consideration of when he formed the intent to rob. But for Calvert's ineffectiveness in failing to request an instruction regarding a jury determination of when Matthew formed the intent to rob the victim, Matthew would have been acquitted of felony murder. The jury would have also unlikely convicted Matthew of traditional first-degree murder and instead convicted Matthew of voluntary manslaughter. Of course, the prosecution is going to disagree. But the point is that it was ultimately for the jury to decide whether or not Matthew formed the intent to rob before or after the killing and Matthew's ineffective trial counsel Calvert prevented the jury from making this determination.

If granted an evidentiary hearing, Matthew would testify that he did not form the intent to take the victim's vehicle untilafter he impulsively shot the victim in the head as a result of the victim threatening to cut up his son. He only took the vehicle after he panicked as confirmed by the State's own witnesses presented during the State's case-in-chief. He would testify credibly and the jury would have believed and acquitted him of first-degree murder and convicted him of voluntary manslaughter.

Calvert would admit that he should have asked for a jury instruction regarding the precise timing of Matthew's formation of the intent to rob. Calvert would admit that but for his failing to ask for an instruction regarding a jury determination of when Matthew formed the intent to rob, Matthew would have been acquitted of first-degree murder and convicted of manslaughter.

D. MATTHEW HAS A VALID APPEAL DEPRIVATION CLAIM UNDER NEVADA RULES OF APPELLATE PROCEDURE 4(C) THAT WENT INTO EFFECT JULY 1, 2009.

Nevada Rule of Appellate Procedure 4(c) allows for the untimely notice of appeal from a judgment of conviction, provided a post-conviction petition for writ of habeas corpus has been timely filed and asserts a viable claim that the petitioner was unlawfully deprived of the right to a timely direct appeal. This claim was conceded by the State as proper if Matthew filed a timely post-conviction petition. V2 JA 427. Matthew has argued in this appeal that the district court erred in ruling his habeas petition is procedurally defaulted.

The following valid claims for relief on direct appeal were raised in the supplement in the district court. V2 JA 418-421. These claims are presented for the Court's review because Matthew presented the district court with valid and meritorious claims for relief that he would assert on direct appeal and further reinforces that ruling Matthew's habeas petition as procedurally defaulted would result in a fundamental miscarriage of justice. Mazzan v. Warden, 112 Nev. 838, 842, 921 P.2d 920, 922 (1996).

Matthew's trial counsel Calvert unlawfully deprived him of his right to directly appeal his very serious conviction of first-degree murder with the use of a firearm. If granted an evidentiary hearing, Matthew would testify as follows regarding his appeal deprivation claim. Matthew was told by Calvert immediately after sentencing that he would appeal his conviction. Matthew was then immediately after sentencing unable to contact Calvert regarding his appeal because Calvert did not visit him, respond to his letters or accept his phone calls. Matthew then filed a pro per notice of appeal that was dismissed by the Nevada Supreme Court in an unpublished written opinion on December 27, 2007 from which the remittitur issued on January 25, 2008. If allowed to directly appeal his conviction, he would raise the following issues which would likely result in reversal and remand of his case for a new trial.

Plain error and prosecutorial misconduct so infected Matthew's jury instructions that these instructional errors require this Court to reverse and remand Matthew's first degree murder conviction with use of a firearm for a new trial. Calvert never objected to any jury instructions. This Court must then review the jury instructions for plain error. Garcia v. State, 121 Nev. 327, 334, 113 P.3d 836 840 (2005). This Court has a duty to protect Matthew's right to reversal and remand of his case because the errors were so plain and patently prejudicial that this court must sua sponte step in and protect Matthew's right to a fair trial. McKenna v. State, 114 Nev. 1044, 1052, 968 P.2d 739, 745 (1998).

The State proceeded upon alternate theories of first degree murder as allowed by law; felony murder with robbery or attempted robbery being the underlying felony and murder occurring with malice, premeditation and deliberation. V1 JA 1. When settling jury instructions at the close of trial, the district court settled all instructions with the exception of instruction 21, the felony murder jury instruction which the prosecution apparently did not provide to either the court or Calvert prior to the morning of March 21, 2009, when jury instructions were settled in chambers. V2 JA 273, 276. Instruction 21, the felony murder jury instruction, was then produced by the State's attorney in chambers after lunch and prior to afternoon closing arguments. Calvert did not object to instruction 21. This is despite instruction 21 being an incorrect statement of felony murder as alleged by the State. V2 JA 277. The State proceeded upon alternate theories of first degree murder as allowed by law; felony murder with robbery or attempted robbery being the underlying felony and murder occurring with malice, premeditation and deliberation. V1 JA 1. Yet, the State's instruction 21 nowhere references any instruction on the elements of attempted robbery. V2 JA 358. Instead State's jury instruction 21 references the robbery or attempted robbery as an element of felony murder and does go on to define robbery but completely leaves out any definition or explanation of the elements of attempted robbery. Id. In fact, nowhere in any of the jury instructions is an attempt under Nevada law properly defined in the context of felony murder and attempted robbery.

This Court should also consider the aforementioned instructional error claim in the context of prosecutorial misconduct. First, the Court must determine whether the prosecutor's conduct of submitting an incomplete and hence incorrect jury instruction was improper; and two, the court must consider whether the improper jury instruction submitted by the prosecutor warrants reversal. Valdez v. State, ___ Nev. ___, ___, 196 P.3d 465, 476 (2008). Submitting an improper and incomplete jury instruction is improper. The question then becomes whether an improperly instructed jury reaching a verdict based upon faulty instructions should be overturned and reversed. This question turns on whether the prosecutorial misconduct of improperly instructing a jury on the elements of felony murder as alleged by the State is of a constitutional dimension. If the prosecutor improperly instructing the jury is of a constitutional dimension, then this Court must reverse unless the State demonstrates, beyond a reasonable doubt, that the error did not contribute to the verdict. Id.

The prosecutor submitting an incomplete and improper jury instruction constitutes prosecutorial misconduct of a constitutional dimension that requires reversal of Matthew's murder conviction. Likewise, the erroneous felony murder jury instruction constitutes plain error that requires reversal. Each claim separately and even more so together combine to render Matthew's murder conviction constitutionally infirm, leaving this court with only to reverse and remand Matthew's case for a new trial.

It is respectfully requested that this court find that Matthew has presented a valid appeal deprivation claim and allow Matthew to directly appeal his judgment of conviction on first degree murder in accordance with the provisions of NRAP 4(c).

CONCLUSION

Matthew did plead good cause to overcome his alleged procedural default in filing his habeas petition about two-months late. It is respectfully requested that this Court reverse and remand with the district court instructed to grant Matthew an evidentiary hearing on his allegations regarding his alleged procedural default as well as the merits of his petition.

Respectfully submitted this 30 day of July, 2010

X ___________________________________________ Counsel for Appellant Matthew James Tjeltveit

Certificate of Compliance

I, Aziz Neal Merchant, ESQ, certify as follows pursuant to NRAP 28.2.

I have read this brief before signing it.

To the best of my knowledge, information and belief, this brief is not frivolous or interposed for any improper purpose such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

To the best of my knowledge, this brief complies with all Nevada Rules of Appellate Procedure, including the requirements of NRAP 28(e) that every assertion in the brief regarding matters in the record be supported by reference to the page and volume number, if any, of the appendix of the matter relied on is to be found.7/30/10 Aziz N. Merchant

Date Aziz Neal Merchant, ESQ. IN THE SUPREME COURT OF THE STATE OF NEVADA MATTHEW JAMES TJELTVEIT, No. 55773 Appellant, vs. WARDEN, ELY STATE PRISON, E.K. MCDANIEL AND THE STATE OF NEVADA, Respondents.

ORDER OF AFFIRMANCE

This is an appeal from an order of the district court dismissing a post-conviction petition for a writ of habeas corpus. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge.

Appellant filed his petition on August 5, 2008, more than one year after entry of the judgment of conviction on June 7, 2007. Thus, appellant's petition was untimely filed. See NRS 34.726(1). Appellant's petition was procedurally barred absent a demonstration of cause for the delay and undue prejudice. See NRS 34.726(1).

On appeal, appellant claims that the district court erred in denying his claim that he had good cause to overcome the procedural bar because he asked trial counsel to appeal his conviction and trial counsel failed to do so. Appellant fails to demonstrate that the district court erred in denying his good cause claim. In order to establish good cause for the delay based upon a petitioner's mistaken belief that counsel had filed a direct appeal, a petitioner must establish "that the petitioner reasonably believed that counsel had filed an appeal and that the petitioner filed a habeas petition within a reasonable time after learning that a direct appeal had not been filed." Hathaway v. State, 119 Nev. 248, 255, 71 P.3d 503, 508 (2003). Appellant appears to have known by November 7, 2007, that trial counsel did not file an appeal because appellant filed a proper person notice of appeal from his judgment of conviction. Further, appellant should have known that counsel did not file an appeal when his appeal was dismissed for being untimely on December 27, 2007, and the remittitur was issued on January 22, 2008. Tieltveit v. State, Docket No. 50518 (Order Dismissing Appeal, December 27, 2007). Therefore, appellant still had more than five months to file a timely petition and waiting over seven months to file was unreasonable. Accordingly, the district court did not err in denying the petition as procedurally barred, and we

We note that because appellant was convicted pursuant to a jury trial, trial counsel had an obligation to consult with appellant regarding whether appellant wanted to appeal his conviction. See Lozada v. State, 110 Nev. 349, 356, 871 P.2d 944, 948 (1994). Therefore, it was reasonable for appellant to believe that trial counsel had filed an appeal and appellant did not have to demonstrate that he requested an appeal in order to make an appeal deprivation claim. However, as stated above, appellant waited an unreasonable amount of time to file his petition, and his claim is procedurally barred.

ORDER the judgment of the district court AFFIRMED.

___________________, J. Saitta ___________________, J. Hardesty ___________________, J. Parraguirre cc: Hon. Steven P. Elliott, District Judge Merchant Law Firm, Ltd. Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

AFFIRMATION PURSUANT TO: N.R.S. 239B.010

I, HEREBY CERTIFY THAT I AM THE UNDERSIGNED INDIVIDUAL AND THAT THE ATTACHED DOCUMENT THAT IS ENTITLED: Motion to Show Couse For Equtable Tolling, DOES NOT CONTAIN THE SOCIAL SECURITY NUMBER OF ANY PERSON, UNDER THE PAINS AND PENALTIES OF PERJURY, THIS, 9^th , DAY OF, MAY, 2011.

SIGNATURE: ___________________________

INMATE NAME PRINTED: Matthew Tjeltveit

INMATE NUMBER: 83651

ADDRESS: ELY STATE PRISON, P.O. BOX 1989, ELY, NV 89301

Tjeltveit v. McDaniel

Opinion

ORDER

Background

Discussion

PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 BY A PERSON IN STATE CUSTODY ( NOT SENTENCED TO DEATH)

GROUND 1

Exhaustion of state court remedies regarding Ground 1:

First Post Conviction:

Second Post Conviction:

Other Proceedings:

GROUND 2

Exhaustion of state court remedies regarding Ground 2:

First Post Conviction:

Second Post Conviction:

Other Proceedings:

GROUND 3

Exhaustion of state court remedies regarding Ground 3:

First Post Conviction:

Second Post Conviction:

Other Proceedings:

GROUND 4

Exhaustion of state court remedies regarding Ground

First Post Conviction:

Second Post Conviction:

Other Proceedings:

GROUND 5

Exhaustion of state court remedies regarding Ground

First Post Conviction:

Second Post Conviction:

Other Proceedings:

POINTS AND AUTHORITIES GROUND 6

POINTS AND AUTHORITIES GROUND 7

POINTS AND AUTHORITIES GROUND 8

DECLARATION UNDER PENALTY OF PERJURY

ORDER

Background

Discussion

REMITTITUR

RECEIPT FOR REMITTITUR

3:08-cv-54 Notice has been electronically mailed to:

PETITION

ORDER DISMISSING APPEAL

VERIFICATION

ORDER GRANTING MOTION TO DISMISS PETITION AND SUPPLEMENTAL PETITIION FOR WRIT OF HABEAS CORPUS (POST-COINVICTION)

NOTICE OF ENTRY OF ORDER

ORDER GRANTING MOTION TO DISMISS PETITION AND SUPPLEMENTAL PETITION FOR WRIT OF HABEAS CORPUS (POST-COINVICTION)

NOTICE OF APPEAL

Affirmation Pursuant to NRS 239B. 030

TABLE OF CONTENTS

TABLE OF AUTHORITIES CASES

JURISDICTIONAL STATEMENT

STATEMENT OF THE ISSUES

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

SUMMARY OF THE ARGUMENT

ARGUMENT

CONCLUSION

Certificate of Compliance

ORDER OF AFFIRMANCE

AFFIRMATION PURSUANT TO: N.R.S. 239B.010

Tjeltveit v. McDaniel

Tjeltveit v. McDaniel

Case Details

CitationsCopy Citation

Citing Cases

Citations