1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3
4 JERRY BROWN, Case No. 3:19-cv-00258-LRH-WGC 5 Petitioner, 6 ORDER DENYING v. MOTION TO DISMISS 7 (ECF NO. 39)
8 RENEE BAKER, et al.,
9 Respondents.
10 11 12 In this habeas corpus action, the respondents filed a motion to dismiss (ECF No. 13 39) on June 24, 2020. The Court will deny that motion, without prejudice to the 14 respondents asserting in their answer that the petitioner’s claims are procedurally 15 defaulted. 16 On November 2, 2016, the petitioner, Jerry Brown, was convicted, upon guilty 17 pleas, in Nevada’s Tenth Judicial District Court (Churchill County), of two counts of 18 lewdness with a child under age 14. See Judgment of Conviction, Exh. 10 (ECF No. 40- 19 10). Brown was sentenced to two consecutive sentences of life in prison, with the 20 possibility of parole after ten years on each. See id. Brown did not appeal from the 21 judgment of conviction. 22 Brown filed a post-conviction petition for writ of habeas corpus in the state district 23 court on October 5, 2017. See Petition for Writ of Habeas Corpus, Exh. 16 (ECF No. 40- 24 16). While that petition was pending, he filed another such petition. See Petition for Writ 25 of Habeas Corpus, Exh. 30 (ECF No. 40-30). The state district court consolidated the 26 two petitions and denied Brown relief in a written order filed on November 3, 2017. See 27 Order Dismissing Petition for Writ of Habeas Corpus, Exh. 26 (ECF No. 40-26). Brown 1 appealed, and the Nevada Court of Appeals affirmed on February 12, 2019. See Order 2 of Affirmance, Exh. 59 (ECF No. 41-28). The Court of Appeals denied rehearing on 3 April 24, 2019. See Order Denying Rehearing, Exh. 61 (ECF No. 41-30). 4 This Court received Brown’s pro se federal petition for writ of habeas corpus, for 5 filing, on May 15, 2019 (ECF No. 4). The Court granted Brown’s motion for appointment 6 of counsel, and appointed counsel for Brown. See Order entered May 16, 2019 (ECF 7 No. 3). With counsel, Brown filed a first amended habeas petition on July 11, 2019 (ECF 8 No. 13), and a second amended habeas petition on March 25, 2020 (ECF No. 24). 9 Respondents filed their motion to dismiss (ECF No. 39) on June 24, 2020, 10 asserting that all the claims in Brown’s second amended petition are unexhausted in 11 state court. Brown filed an opposition to the motion to dismiss on August 27, 2020 (ECF 12 No. 44), conceding that his claims have not been presented in state court, but arguing 13 that they are technically exhausted because, under state procedural rules—the state 14 statute of limitations (NRS 34.726) and the state statute placing limits on successive 15 petitions (NRS 34.810)—they are now procedurally barred in state court, and, therefore, 16 the state courts would not now adjudicate their merits. Brown recognizes that, as a 17 result, his claims are potentially subject to denial as procedurally defaulted, but he 18 argues that he can overcome the procedural default under Martinez v. Ryan, 566 U.S. 1 19 (2012). Respondents filed a reply on September 25, 2020 (ECF No. 45), requesting that 20 the Martinez analysis be deferred and considered in conjunction with the merits of 21 Brown’s claims. 22 A federal court may not grant habeas corpus relief on a claim not exhausted in 23 state court. 28 U.S.C. § 2254(b). The exhaustion requirement is based on the policy of 24 federal-state comity, and is intended to allow state courts the initial opportunity to 25 correct constitutional violations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To 26 exhaust a claim, a petitioner must fairly present the claim to the highest available state 27 court and must give that court the opportunity to address and resolve it. See Duncan v. 1 10 (1992). A claim is fairly presented to the state court if, before that court, the petitioner 2 describes the operative facts and legal theory upon which the claim is based. See 3 Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; 4 Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982). The parties agree—and the 5 record reflects—that Brown has not presented the state courts with the claims he 6 asserts here. 7 It appears, further, that Brown’s claims would now be procedurally barred in state 8 court. In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that a 9 state prisoner who fails to comply with the state’s procedural requirements in presenting 10 claims is barred by the adequate and independent state ground doctrine from obtaining 11 a writ of habeas corpus in federal court. Coleman, 501 U.S. at 731–32 (“Just as in those 12 cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who 13 has failed to meet the State’s procedural requirements for presenting his federal claims 14 has deprived the state courts of an opportunity to address those claims in the first 15 instance.”). Brown’s claims, now procedurally barred in state court, are subject to 16 application of the procedural default doctrine in this case. See Dickens v. Ryan, 740 17 F.3d 1302, 1317 (9th Cir. 2014) (“An unexhausted claim will be procedurally defaulted, if 18 state procedural rules would now bar the petitioner from bringing the claim in state 19 court.”). Where a state-court procedural bar constitutes an adequate and independent 20 state ground for denial of habeas corpus, the default may be excused only if “a 21 constitutional violation has probably resulted in the conviction of one who is actually 22 innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting 23 from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). To demonstrate cause for a 24 procedural default, the petitioner must “show that some objective factor external to the 25 defense impeded” his efforts to comply with the state procedural rule. Murray, 477 U.S. 26 at 488. For cause to exist, the external impediment must have prevented the petitioner 27 from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect 1 || the errors [complained of] constituted a possibility of prejudice, but that they worked to 2 || his actual and substantial disadvantage, infecting his entire [proceeding] with errors of 3 || constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing 4 || United States v. Frady, 456 U.S. 152, 170 (1982). In Martinez, the Supreme Court ruled 5 || that ineffective assistance of post-conviction counsel may serve as cause to overcome 6 || the procedural default of a claim of ineffective assistance of trial counsel. See Martinez, 7 || 566 U.S. at 9.
Free access — add to your briefcase to read the full text and ask questions with AI
1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3
4 JERRY BROWN, Case No. 3:19-cv-00258-LRH-WGC 5 Petitioner, 6 ORDER DENYING v. MOTION TO DISMISS 7 (ECF NO. 39)
8 RENEE BAKER, et al.,
9 Respondents.
10 11 12 In this habeas corpus action, the respondents filed a motion to dismiss (ECF No. 13 39) on June 24, 2020. The Court will deny that motion, without prejudice to the 14 respondents asserting in their answer that the petitioner’s claims are procedurally 15 defaulted. 16 On November 2, 2016, the petitioner, Jerry Brown, was convicted, upon guilty 17 pleas, in Nevada’s Tenth Judicial District Court (Churchill County), of two counts of 18 lewdness with a child under age 14. See Judgment of Conviction, Exh. 10 (ECF No. 40- 19 10). Brown was sentenced to two consecutive sentences of life in prison, with the 20 possibility of parole after ten years on each. See id. Brown did not appeal from the 21 judgment of conviction. 22 Brown filed a post-conviction petition for writ of habeas corpus in the state district 23 court on October 5, 2017. See Petition for Writ of Habeas Corpus, Exh. 16 (ECF No. 40- 24 16). While that petition was pending, he filed another such petition. See Petition for Writ 25 of Habeas Corpus, Exh. 30 (ECF No. 40-30). The state district court consolidated the 26 two petitions and denied Brown relief in a written order filed on November 3, 2017. See 27 Order Dismissing Petition for Writ of Habeas Corpus, Exh. 26 (ECF No. 40-26). Brown 1 appealed, and the Nevada Court of Appeals affirmed on February 12, 2019. See Order 2 of Affirmance, Exh. 59 (ECF No. 41-28). The Court of Appeals denied rehearing on 3 April 24, 2019. See Order Denying Rehearing, Exh. 61 (ECF No. 41-30). 4 This Court received Brown’s pro se federal petition for writ of habeas corpus, for 5 filing, on May 15, 2019 (ECF No. 4). The Court granted Brown’s motion for appointment 6 of counsel, and appointed counsel for Brown. See Order entered May 16, 2019 (ECF 7 No. 3). With counsel, Brown filed a first amended habeas petition on July 11, 2019 (ECF 8 No. 13), and a second amended habeas petition on March 25, 2020 (ECF No. 24). 9 Respondents filed their motion to dismiss (ECF No. 39) on June 24, 2020, 10 asserting that all the claims in Brown’s second amended petition are unexhausted in 11 state court. Brown filed an opposition to the motion to dismiss on August 27, 2020 (ECF 12 No. 44), conceding that his claims have not been presented in state court, but arguing 13 that they are technically exhausted because, under state procedural rules—the state 14 statute of limitations (NRS 34.726) and the state statute placing limits on successive 15 petitions (NRS 34.810)—they are now procedurally barred in state court, and, therefore, 16 the state courts would not now adjudicate their merits. Brown recognizes that, as a 17 result, his claims are potentially subject to denial as procedurally defaulted, but he 18 argues that he can overcome the procedural default under Martinez v. Ryan, 566 U.S. 1 19 (2012). Respondents filed a reply on September 25, 2020 (ECF No. 45), requesting that 20 the Martinez analysis be deferred and considered in conjunction with the merits of 21 Brown’s claims. 22 A federal court may not grant habeas corpus relief on a claim not exhausted in 23 state court. 28 U.S.C. § 2254(b). The exhaustion requirement is based on the policy of 24 federal-state comity, and is intended to allow state courts the initial opportunity to 25 correct constitutional violations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To 26 exhaust a claim, a petitioner must fairly present the claim to the highest available state 27 court and must give that court the opportunity to address and resolve it. See Duncan v. 1 10 (1992). A claim is fairly presented to the state court if, before that court, the petitioner 2 describes the operative facts and legal theory upon which the claim is based. See 3 Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; 4 Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982). The parties agree—and the 5 record reflects—that Brown has not presented the state courts with the claims he 6 asserts here. 7 It appears, further, that Brown’s claims would now be procedurally barred in state 8 court. In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court held that a 9 state prisoner who fails to comply with the state’s procedural requirements in presenting 10 claims is barred by the adequate and independent state ground doctrine from obtaining 11 a writ of habeas corpus in federal court. Coleman, 501 U.S. at 731–32 (“Just as in those 12 cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who 13 has failed to meet the State’s procedural requirements for presenting his federal claims 14 has deprived the state courts of an opportunity to address those claims in the first 15 instance.”). Brown’s claims, now procedurally barred in state court, are subject to 16 application of the procedural default doctrine in this case. See Dickens v. Ryan, 740 17 F.3d 1302, 1317 (9th Cir. 2014) (“An unexhausted claim will be procedurally defaulted, if 18 state procedural rules would now bar the petitioner from bringing the claim in state 19 court.”). Where a state-court procedural bar constitutes an adequate and independent 20 state ground for denial of habeas corpus, the default may be excused only if “a 21 constitutional violation has probably resulted in the conviction of one who is actually 22 innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting 23 from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). To demonstrate cause for a 24 procedural default, the petitioner must “show that some objective factor external to the 25 defense impeded” his efforts to comply with the state procedural rule. Murray, 477 U.S. 26 at 488. For cause to exist, the external impediment must have prevented the petitioner 27 from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect 1 || the errors [complained of] constituted a possibility of prejudice, but that they worked to 2 || his actual and substantial disadvantage, infecting his entire [proceeding] with errors of 3 || constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing 4 || United States v. Frady, 456 U.S. 152, 170 (1982). In Martinez, the Supreme Court ruled 5 || that ineffective assistance of post-conviction counsel may serve as cause to overcome 6 || the procedural default of a claim of ineffective assistance of trial counsel. See Martinez, 7 || 566 U.S. at 9. 8 Because it is possible that Brown may be able to overcome the procedural 9 || default of his claims, under Martinez, by a showing of ineffective assistance of counsel 10 || in his state habeas action, and because this issue is intertwined with the merits of his 11 || claims, the Court determines that this issue will be best addressed after Respondents 12 || file an answer, and Brown files a reply. The Court will, therefore, deny the motion to 13 || dismiss, without prejudice to Respondents asserting their procedural default defense in 14 || their answer, along with their briefing of the merits of Brown’s claims. 15 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 16 || 39) is DENIED. 17 IT IS FURTHER ORDERED that Respondents will have 90 days from the date of 18 || this order to file an answer. In all other respects the schedule for further proceedings set 19 || forth in the order entered June 14, 2019 (ECF No. 12) will remain in effect. 20 21 DATED this 3rd day of December, 2020. 22 -
23 LARRYR. HIC 24 UNITED STATES DISTRICT JUDGE 25 26 27 28