3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 ANTHONY BAILEY, Case No. 2:19-cv-01725-GMN-BNW
6 Petitioner, v. ORDER 7 WARDEN BRIAN WILLIAMS, et al., 8 Respondents. 9 10 Petitioner Anthony Bailey, a pro se Nevada prisoner, commenced this habeas action by 11 filing an Amended Petition for Writ of Habeas Corpus (ECF No. 110) pursuant to 28 U.S.C. 12 § 2254 to challenge his state court convictions of one count of Sexual Assault with a Deadly 13 Weapon, two counts of Possession or Sale of Document or Personal Identifying Information to 14 Establish False Status or Identity, and one count of Misdemeanor Coercion. Respondents move 15 to dismiss the Amended Petition because it contains grounds that are untimely, procedurally 16 barred, and/or not cognizable. ECF No. 118. Bailey did not file an opposition and the time to 17 oppose has expired. 18 Background 19 Following a six-day jury trial, where Bailey represented himself, a jury found Bailey 20 guilty, the state court adjudicated Bailey a habitual criminal, and sentenced him to a maximum 21 term of life with the possibility of parole after a minimum of 10 years, plus a consecutive term of 22 16-48 months. ECF No. 47-2. On appeal, the Nevada Supreme Court affirmed his convictions. 23 ECF No. 51-3. 24 Bailey then filed a state habeas Petition and following an evidentiary hearing, the state 25 district court denied Bailey’s state habeas Petition. The Nevada Court of Appeals affirmed the 26 state district court’s denial of relief. ECF No. 54-25. Bailey filed a second state habeas Petition 27 1 that the state court dismissed as procedurally barred. ECF No. 56-8. The Nevada Court of 2 Appeals affirmed the denial of relief finding Bailey’s second state habeas Petition was untimely 3 and successive. ECF No. 104-4. 4 Bailey filed his federal habeas Petition. ECF No. 4. The Court granted Respondents’ 5 Motion to Dismiss, in part, dismissing Ground 1(a) to the extent it relies on the Fourth 6 Amendment, Grounds 2(a), 3(a), 5(a), 16 and 17 as well as finding Ground 8 and the portion of 7 Ground 1(a) alleging that the state district court erred by permitting amendment to the charging 8 instrument after trial testimony and the presentation of evidence in violation of the Fourteenth 9 Amendment unexhausted. ECF No. 90. 10 The Court granted Bailey’s motion seeking a stay and abeyance and he filed a third state 11 habeas Petition. ECF No. 104-7. The state court dismissed his third state habeas Petition as 12 procedurally barred and the Nevada Court of Appeals affirmed. ECF Nos. 104-11, 106-1. The 13 Court granted Bailey’s motion to reopen. ECF No. 95. The Court construed his Amended 14 Petition as a motion to amend and granted such motion. ECF No. 96. 15 Respondents assert that Bailey’s Amended Petition is identical to his third state habeas 16 Petition. They move to dismiss Bailey’s Amended Petition because it contains claims that do not 17 relate back to his timely-filed original Petition, claims that are procedurally barred, and claims 18 that are not cognizable. ECF No. 118. 19 Discussion 20 Federal courts are barred from considering a state prisoner’s habeas claim if the state 21 courts denied his claim based on an independent and adequate state procedural rule. Edwards v. 22 Carpenter, 529 U.S. 446, 454-55 (2000). Nevada’s one-year statute of limitation1 for post- 23 conviction petitions and prohibition on second or successive post-conviction petitions are 24 independent and adequate state procedural rules as applied in non-capital cases. See, e.g., 25 Williams v. Filson, 908 F.3d 546, 580 (9th Cir. 2018); Bargas v. Burns, 179 F.3d 1207, 1211–14 26
27 1 NRS 34.726; NRS 34.810(2). 1 (9th Cir. 1999). Additionally, a federal court may consider a claim procedurally defaulted where 2 “it is clear that the state court would hold the claim procedurally barred.” Sandgathe v. Maass, 3 314 F.3d 371, 376 (9th Cir. 2002). When a petitioner “procedurally defaults” a federal claim, 4 judicial review is barred unless he can show either: (1) “cause for the default and actual prejudice 5 as a result of the alleged violation of federal law,” or (2) “that failure to consider the claims will 6 result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); 7 McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (the miscarriage of justice exception ensures 8 “that federal constitutional errors do not result in the incarceration of innocent persons”). 9 To demonstrate cause, the petitioner must show that some external and objective factor 10 impeded his efforts to comply with the procedural rule. Maples v. Thomas, 565 U.S. 266, 280–81 11 (2012). Ignorance or inadvertence does not establish cause. Murray v. Carrier, 477 U.S. 478, 12 486–87 (1986). To show prejudice, a petitioner must prove not merely that the error created a 13 possibility of prejudice, but that the error worked to his actual and substantial disadvantage, 14 infecting the entire proceeding with constitutional error. Carrier, 477 U.S. at 494; Bradford v. 15 Davis, 923 F.3d 599, 613 (9th Cir. 2019). To demonstrate a fundamental miscarriage of justice, 16 a petitioner must show that the constitutional error complained of probably resulted in the 17 conviction of an innocent person. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). This 18 is a narrow exception, and it is reserved for extraordinary cases only. Sawyer v. Whitley, 505 19 U.S. 333, 340 (1992). 20 Respondents argue that Grounds 1, 2, 3, 4, 5, 6, 6(a)2, 7, 8, 9, 10, 12, 13, and 14 should 21 be dismissed because they are barred by the procedural default doctrine. ECF No. 118 at 14-15. 22 The Nevada Court of Appeals dismissed Bailey’s third state habeas Petition as untimely and 23 successive. Id. Although Bailey fails to specify where he exhausted each individual claim, 24 Respondents assert that Bailey appears to rely on his claims brought in his third state habeas 25 Petition to exhaust Grounds 1, 2, 3, 4, 5, 6, 6(a), 7, 8, 9, 10, 12, 13, and 14. Id. at 14. 26 2 Although Bailey labels Ground 6(a) as a subclaim of Ground 6, Respondents refer to Ground 27 6(a) as an individual claim because it reads as a separate ground. ECF No. 118 at fn 9. 1 Bailey raised these claims in his third state habeas Petition. See ECF No. 104-7. The 2 state court dismissed his third state habeas Petition on procedural grounds and the Nevada Court 3 of Appeals affirmed finding his Petition untimely and successive. ECF Nos. 104-11, 106-1. 4 Therefore, these claims are barred in this federal action by the procedural default doctrine, unless 5 Bailey can show cause and prejudice regarding the procedural default, or unless he can show that 6 “a constitutional violation has probably resulted in the conviction of one who is actually 7 innocent.” Murray, 477 U.S. at 496.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 ANTHONY BAILEY, Case No. 2:19-cv-01725-GMN-BNW
6 Petitioner, v. ORDER 7 WARDEN BRIAN WILLIAMS, et al., 8 Respondents. 9 10 Petitioner Anthony Bailey, a pro se Nevada prisoner, commenced this habeas action by 11 filing an Amended Petition for Writ of Habeas Corpus (ECF No. 110) pursuant to 28 U.S.C. 12 § 2254 to challenge his state court convictions of one count of Sexual Assault with a Deadly 13 Weapon, two counts of Possession or Sale of Document or Personal Identifying Information to 14 Establish False Status or Identity, and one count of Misdemeanor Coercion. Respondents move 15 to dismiss the Amended Petition because it contains grounds that are untimely, procedurally 16 barred, and/or not cognizable. ECF No. 118. Bailey did not file an opposition and the time to 17 oppose has expired. 18 Background 19 Following a six-day jury trial, where Bailey represented himself, a jury found Bailey 20 guilty, the state court adjudicated Bailey a habitual criminal, and sentenced him to a maximum 21 term of life with the possibility of parole after a minimum of 10 years, plus a consecutive term of 22 16-48 months. ECF No. 47-2. On appeal, the Nevada Supreme Court affirmed his convictions. 23 ECF No. 51-3. 24 Bailey then filed a state habeas Petition and following an evidentiary hearing, the state 25 district court denied Bailey’s state habeas Petition. The Nevada Court of Appeals affirmed the 26 state district court’s denial of relief. ECF No. 54-25. Bailey filed a second state habeas Petition 27 1 that the state court dismissed as procedurally barred. ECF No. 56-8. The Nevada Court of 2 Appeals affirmed the denial of relief finding Bailey’s second state habeas Petition was untimely 3 and successive. ECF No. 104-4. 4 Bailey filed his federal habeas Petition. ECF No. 4. The Court granted Respondents’ 5 Motion to Dismiss, in part, dismissing Ground 1(a) to the extent it relies on the Fourth 6 Amendment, Grounds 2(a), 3(a), 5(a), 16 and 17 as well as finding Ground 8 and the portion of 7 Ground 1(a) alleging that the state district court erred by permitting amendment to the charging 8 instrument after trial testimony and the presentation of evidence in violation of the Fourteenth 9 Amendment unexhausted. ECF No. 90. 10 The Court granted Bailey’s motion seeking a stay and abeyance and he filed a third state 11 habeas Petition. ECF No. 104-7. The state court dismissed his third state habeas Petition as 12 procedurally barred and the Nevada Court of Appeals affirmed. ECF Nos. 104-11, 106-1. The 13 Court granted Bailey’s motion to reopen. ECF No. 95. The Court construed his Amended 14 Petition as a motion to amend and granted such motion. ECF No. 96. 15 Respondents assert that Bailey’s Amended Petition is identical to his third state habeas 16 Petition. They move to dismiss Bailey’s Amended Petition because it contains claims that do not 17 relate back to his timely-filed original Petition, claims that are procedurally barred, and claims 18 that are not cognizable. ECF No. 118. 19 Discussion 20 Federal courts are barred from considering a state prisoner’s habeas claim if the state 21 courts denied his claim based on an independent and adequate state procedural rule. Edwards v. 22 Carpenter, 529 U.S. 446, 454-55 (2000). Nevada’s one-year statute of limitation1 for post- 23 conviction petitions and prohibition on second or successive post-conviction petitions are 24 independent and adequate state procedural rules as applied in non-capital cases. See, e.g., 25 Williams v. Filson, 908 F.3d 546, 580 (9th Cir. 2018); Bargas v. Burns, 179 F.3d 1207, 1211–14 26
27 1 NRS 34.726; NRS 34.810(2). 1 (9th Cir. 1999). Additionally, a federal court may consider a claim procedurally defaulted where 2 “it is clear that the state court would hold the claim procedurally barred.” Sandgathe v. Maass, 3 314 F.3d 371, 376 (9th Cir. 2002). When a petitioner “procedurally defaults” a federal claim, 4 judicial review is barred unless he can show either: (1) “cause for the default and actual prejudice 5 as a result of the alleged violation of federal law,” or (2) “that failure to consider the claims will 6 result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); 7 McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (the miscarriage of justice exception ensures 8 “that federal constitutional errors do not result in the incarceration of innocent persons”). 9 To demonstrate cause, the petitioner must show that some external and objective factor 10 impeded his efforts to comply with the procedural rule. Maples v. Thomas, 565 U.S. 266, 280–81 11 (2012). Ignorance or inadvertence does not establish cause. Murray v. Carrier, 477 U.S. 478, 12 486–87 (1986). To show prejudice, a petitioner must prove not merely that the error created a 13 possibility of prejudice, but that the error worked to his actual and substantial disadvantage, 14 infecting the entire proceeding with constitutional error. Carrier, 477 U.S. at 494; Bradford v. 15 Davis, 923 F.3d 599, 613 (9th Cir. 2019). To demonstrate a fundamental miscarriage of justice, 16 a petitioner must show that the constitutional error complained of probably resulted in the 17 conviction of an innocent person. Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). This 18 is a narrow exception, and it is reserved for extraordinary cases only. Sawyer v. Whitley, 505 19 U.S. 333, 340 (1992). 20 Respondents argue that Grounds 1, 2, 3, 4, 5, 6, 6(a)2, 7, 8, 9, 10, 12, 13, and 14 should 21 be dismissed because they are barred by the procedural default doctrine. ECF No. 118 at 14-15. 22 The Nevada Court of Appeals dismissed Bailey’s third state habeas Petition as untimely and 23 successive. Id. Although Bailey fails to specify where he exhausted each individual claim, 24 Respondents assert that Bailey appears to rely on his claims brought in his third state habeas 25 Petition to exhaust Grounds 1, 2, 3, 4, 5, 6, 6(a), 7, 8, 9, 10, 12, 13, and 14. Id. at 14. 26 2 Although Bailey labels Ground 6(a) as a subclaim of Ground 6, Respondents refer to Ground 27 6(a) as an individual claim because it reads as a separate ground. ECF No. 118 at fn 9. 1 Bailey raised these claims in his third state habeas Petition. See ECF No. 104-7. The 2 state court dismissed his third state habeas Petition on procedural grounds and the Nevada Court 3 of Appeals affirmed finding his Petition untimely and successive. ECF Nos. 104-11, 106-1. 4 Therefore, these claims are barred in this federal action by the procedural default doctrine, unless 5 Bailey can show cause and prejudice regarding the procedural default, or unless he can show that 6 “a constitutional violation has probably resulted in the conviction of one who is actually 7 innocent.” Murray, 477 U.S. at 496. Bailey does not attempt to make a showing of cause and 8 prejudice to overcome the procedural default regarding Grounds 1, 2, 3, 4, 5, 6, 6(a), 7, 8, 9, 10, 9 12, 13, and 14. 10 To the extent that Bailey asserts actual innocence to overcome the procedural default of 11 his claims, the Court finds that he fails to demonstrate actual innocence to excuse any procedural 12 bar of Grounds 1, 2, 3, 4, 5, 6, 6(a), 7, 8, 9, 10, 12, 13, and 14. Demonstrating actual innocence 13 is a narrow “gateway” by which a petitioner can obtain federal court consideration of habeas 14 claims that are otherwise procedurally barred, including claims filed after the expiration of the 15 federal limitations period. Schlup v. Delo, 513 U.S. 298, 314–15 (1995). In this regard, “actual 16 innocence” means actual factual innocence, not mere legal insufficiency. See, e.g., Sawyer v. 17 Whitley, 505 U.S. 333, 339 (1992). “To be credible, [an actual innocence] claim requires 18 petitioner to support his allegations of constitutional error with new reliable evidence — whether 19 it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 20 evidence — that was not presented at trial.” Schlup, 513 U.S. at 324. The narrow Schlup 21 standard is satisfied only if the new, reliable evidence, together with the evidence adduced at 22 trial, demonstrates that it is more likely than not that no reasonable juror would have found the 23 petitioner guilty beyond a reasonable doubt. Id. at 329. 24 Bailey has not presented new reliable evidence demonstrating that he is actually innocent. 25 He merely makes conclusory statements that he believes he is actually innocent when asserting 26 his claims. Such conclusory statements do not approach the standard set in Schlup and do not 27 establish that it is more likely than not that no reasonable juror would have convicted Bailey in 1 light of new evidence. Accordingly, Grounds 1, 2, 3, 4, 5, 6, 6(a), 7, 8, 9, 10, 12, 13, and 14 are 2 barred by the procedural default doctrine, and will be dismissed. 3 Respondents also assert that Grounds 2, 6, 10, 12, and 13 are untimely because they do 4 not relate back to Bailey’s timely-filed original Petition and that Grounds 1, 3, 4, 6, 6(a), 7, 8, 9, 5 10, and 14 should be dismissed as not cognizable. Because the Court determined that Grounds 1, 6 2, 3, 4, 5, 6, 6(a), 7, 8, 9, 10, 12, 13, and 14 are barred by the procedural default doctrine, the 7 Court need not reach whether the claims are untimely or not cognizable. See Cooper v. Neven, 8 641 F.3d 322, 327-38 (9th Cir. 2011) (stating that when a particular issue is dispositive, a district 9 court “need not consider alternative reasons for dismissing the petition”). 10 Conclusion 11 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 118) is 12 granted, in part. Grounds 1, 2, 3, 4, 5, 6, 6(a), 7, 8, 9, 10, 12, 13, and 14 are dismissed as barred 13 by the procedural default doctrine. 14 IT IS FURTHER ORDERED that Respondents have until August 23, 2024, to file and 15 serve an answer addressing the remaining claims in Bailey’s Amended Petition. 16 IT IS FURTHER ORDERED that Bailey will have 60 days from the date of service of 17 the Answer to file and serve a Reply.
18 DATED: July 24, 2024
19 ________________________________ 20 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27