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Kirstin Blaise Lobato Scores Big Win In Court Hearing On January 13, 2011

By Hans Sherrer

Justice Denied

Kirstin Blaise Lobato scored a significant “win” during a hearing on January 13, 2011, related to her state habeas corpus petition that is currently pending.

Ms. Lobato filed a 770-page state habeas corpus petition on May 5, 2010. Her petition includes 79 grounds supporting that her October 2006 convictions related to the July 2001 murder of a homeless man in Las Vegas should be vacated and she should be granted a new trial. She was sentenced to 13 to 35 years in prison and she is currently serving that sentence.

Eighteen at the time of the man’s murder, Ms. Lobato has proclaimed her innocence of the crime or of ever having met the man or having been to the scene of the crime prior to his murder.

The Clark County District Attorney filed a 42-page Response to Ms. Lobato’s petition on August 20, 2010. That was 105 days after her petition was filed, which was allowed because the DA filed a motion for an extension of time to file his Response that was granted by Judge Vega on July 15, 2010.

The DA’s Response opposed the granting of Ms. Lobato’s petition. However, by and large the Response didn’t rely on reasoned arguments based on the facts of her case and the applicable case law. Instead, to justify opposing Ms. Lobato’s 79 grounds for a new trial the Response relied on the strategy of repeatedly misstating, falsifying and ignoring the record of her case; misstating or ignoring applicable case law; and citing non-existent parts of the record that were fabricated out of thin air.

If a person says 2+2=5, disproving that false statement can’t be done by simply saying “No, 2+2=4,” because that merely creates a ‘he said, she said’ situation. It might take a page to explain in a clear and reasoned way that 2+2 does not equal 5. So it was with Ms. Lobato’s Answer to the District Attorney’s Response that figuratively speaking repeatedly states over and over in different ways that 2+2=5, and 3+2=9, and 4+5=13. Consequently, it took a 205 page Answer by Ms. Lobato to correct and counter the District Attorney’s dishonest, misleading, and disingenuous Response.

Under the Nevada Rules of Civil Procedure Ms. Lobato only had 20 days from the date the Response was served to file her Answer, plus 3 days for service by mail to her at the McClure Correctional Facility. Which means she had until September 13, 2010 to file her Answer. That wasn’t enough time to prepare her lengthy Answer, so on September 10 she mailed to the Clark County District Court Clerk a Motion for a 30-day extension of time to file her Answer. Ms. Lobato requested an extension until October 13 to file her Answer, which in fact was filed on October 1, 2010.

The United States Supreme Court has ruled that under what is known as the “prisoner mailbox rule” a document mailed to a court clerk is legally considered filed at the time a prisoner entrusts it to the prison officials for mailing. The federal Ninth Circuit Court of Appeals has repeatedly ruled in favor of prisoners and enforced the “prisoner mailbox rule” in disputes over the filing date of a document.

The court clerk received Ms. Lobato’s Motion for an extension of time on September 16 and filed it the next day, September 17. Ms. Lobato then filed a Motion for an Order that in accordance with the “prisoner mailbox rule” the court clerk be ordered to correct the filing date to September 10. The Motion included Affidavits by Ms. Lobato and two witnesses who saw her deposit the Motion in the prisoner mailbox at the McClure Correctional Center on September 10, 2010. Since the Motion for an extension of time was filed on September 10, it was “timely” filed prior to the September 13 due date for her Answer, and thus she had not waived filing an Answer.

The District Attorney responded by opposing both Ms. Lobato’s Motion for an extension of time and her Motion to correct the filing date of that Motion to the date it was mailed by her -- September 10, 2010.

Travis Barrick, the losing candidate for Nevada Attorney General in the November 3, 2010, general election, agreed to represent Ms. Lobato in her state habeas corpus petition pro bono. He filed his notice of appearance on November 5, 2010.

On January 13, 2010, a hearing was held in Judge Valorie Vega’s courtroom during which she was scheduled to consider Ms. Lobato’s Motions for an extension of time to file her Answer and for an Order for the court clerk to correct the filing date of that Motion to September 10, 2010.

During that hearing the State’s representative stated on the record in open court that they will not challenge the timeliness of Ms. Lobato’s Answer or move to strike her Answer. Mr. Barrick then moved to withdraw as moot Ms. Lobato’s two motions, as well as a third motion related to those Motions.

It has also been represented to Mr. Barrick that Judge Vega is incorporating Ms. Lobato’s Answer into her evaluation of the merits of the 79 grounds in Ms. Lobato’s habeas corpus petition.

It is a significant victory for Ms. Lobato that the State and Judge Vega have accepted her Answer as timely filed. That means her Answer’s corrections of the factual and legal errors in the DA’s Response are a part of the record of her habeas corpus case. It is likely that without the availability of Ms. Lobato’s Answer Judge Vega would have incorporated without reservation the Response’s inaccurate factual representations and legal arguments, and consequently denied the petition without seriously evaluating the merits of the perition's many issues. If Judge Vega’s findings of fact and conclusions of law in denying Ms. Lobato’s petition were based on the Response’s factual distortions and legal inaccuracies, that would have dramatically increased the probability that her denial of the petition would have been affirmed by the Nevada Supreme Court. It also would have reduced the probability that Ms. Lobato would be granted relief in the federal courts if it was necessary for her to file a federal habeas corpus petition, since a state prisoner’s federal petition must prove by clear and convincing evidence that the state court “unreasonably” applied the applicable federal law and/or U.S. Supreme Court precedent to the facts of the case -- which in many respects are distorted in the State’s Response. Now that Ms. Lobato’s Answer is a part of the record, it can be used to counter in federal court particular reasons that Judge Vega and the Nevada Supreme Court may rely on to deny her petition.

So having her Answer accepted as “timely” can be a determining factor in the ultimate granting of state or federal habeas relief to Ms. Lobato, the dismissing of the charges against her, and her release from prison.

After the hearing on January 13, Mr. Barrick was interviewed by Las Vegas’ KLAS-TV channel 8. During that interview he stated:

“Under the Social Contract Theory of government, We The People hire District Attorneys to prosecute criminals and lock them up for the publics’ safety. We pay the District Attorneys well and we expect them to be good at what they do. But just because they are good does not mean that they are always right. With Ms. Lobato, we have the perfect example of the District Attorney doing a great job of prosecuting the wrong person. There is no physical evidence tying Ms. Lobato to the crime scene, there is ample evidence that she was nowhere near the murder and the evidence implicating the real killers was left uninvestigated. In the name of all that is right, good and fair, we ask that Ms. Lobato’s Petition be granted and that the Court set her free.”