Duarte v. Williams

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Pedro R. Duarte, Case No.: 2:12-cv-01305-JAD-EJY Petitioner

Order Granting Conditional Writ of v. Habeas Corpus on Remand from the United States Court of Appeals for the Brian Williams, et al., Ninth Circuit

Respondents [ECF No. 96.]

Petitioner Pedro R. Duarte sought a writ of habeas corpus under 28 U.S.C. § 2254 based, in part, on claims that his trial counsel was ineffective.1 I denied Duarte’s petition, and this case was closed on September 30, 2019.2 Duarte appealed, and the United States Court of Appeals granted a certificate of appealability on one ground: whether he demonstrated cause and prejudice to excuse the procedural default of his claim that his trial counsel rendered ineffective assistance by failing to challenge the co-conspirator or aider-and-abettor liability jury instruction.3 The United States Court of Appeals has now determined that Duarte’s underlying ineffective-assistance claim is meritorious and that his procedural default is excused under Martinez v. Ryan, 566 U.S. 1 (2012).4 Accordingly, the United States Court of Appeals remanded this case “with instruction to grant a conditional writ of habeas corpus ordering Duarte to be resentenced unless the State of Nevada retries him on the attempt murder counts within a reasonable period of time.”5 In accordance with the United States Court of Appeals’ memorandum, I grant a conditional writ of habeas corpus.

ECF No. 47.

ECF Nos. 91, 92.

ECF Nos. 93, 96 at 3.

ECF No. 96 at 8–9.

Id. at 9.

IT IS THEREFORE ORDERED that A CONDITIONAL WRIT OF HABEAS CORPUS IS GRANTED. The State of Nevada is directed to resentence Duarte unless it 3} retries him on the attempt-murder counts within 120 days of the date this order is filed. Dated: October 25, 2021 __(Lbeeys ‘ U.S. District Judge JenniférA. Dorsey

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