Cary W. Williams v. Gittere (DEATH PENALTY)

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 Cary Wallace Williams, Case No. 2:98-cv-00056-APG-VCF

5 Petitioner, v. Order 6

7 William Gittere,1 et al.,

8 Respondents.

9 10 On November 9, 2018, the United States Court of Appeals for the Ninth Circuit issued an 11 opinion affirming in part and reversing in part this court’s final order denying habeas relief. 12 Williams v. Warden, 908 F.3d 546 (9th Cir. 2018). The court of appeals ordered as follows:

13 [W]e conclude that the district court erred by denying Williams equitable tolling, which requires us to reverse the court’s dismissal of Claims 1(C), 1(D), 1(E), 14 1(H), 1(I), 1(J), 9, and 14 and remand for further proceedings as to those claims. We reverse the district court’s denial of Williams’ request for an evidentiary 15 hearing on Claim 1(F) and remand for the district court to conduct an evidentiary hearing as to that claim. 16 17 Id. at 581. Petitioner Cary W. Williams has moved to expand the evidentiary hearing beyond 18 Claim 1(F) to include the remaining claims. ECF No. 264. The respondents oppose the motion 19 for all claims except for Claim 1(H), which is encompassed by Claim 1(F)). ECF No. 277. For 20 reasons that follow, I will deny the motion for the remaining claims. 21 1. Claims 1(C), 9, and 14. 22 Claims 1(F), 1(C), 9, and 14 are the remaining claims in Williams’ third amended 23 petition (ECF No. 135) that are not procedurally defaulted. In addressing Williams’ right to an 24 evidentiary hearing on Claim 1(F), the court of appeals stated:

25 Williams is entitled to an evidentiary hearing if he can (1) “show that he has not failed to develop the factual basis of the claim in the state courts”; (2) meet one of 26

27 1 William Gittere is substituted as the warden respondent in this case. See Fed. R. Civ. P. 25(d). the factors identified by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 83 1 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992); and 2 (3) “make colorable allegations that, if proved at an evidentiary hearing, would entitle him to habeas relief.” Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir. 3 2005). 4 Williams, 908 F.3d at 564–65. The court of appeals determined Williams met all three criteria 5 for Claim 1(F). Id. at 565-71. 6 In considering whether Williams should have received an evidentiary hearing in this 7 court on other claims, the Ninth Circuit recognized the statutory limitations:

8 Section 2254(e)(2) states that if a petitioner “has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary 9 hearing on the claim,” with certain statutory exceptions not relevant here. Section 2254(e)(2) bars an evidentiary hearing in federal court if the failure to develop the 10 factual basis of a claim in state court is attributable to a “lack of diligence or some other fault” on the petitioner’s part. Williams v. Taylor, 529 U.S. 420, 434, 120 11 S.Ct. 1479, 146 L.Ed.2d 435 (2000). 12 Id. at 572. 13 Williams argues that he was diligent in trying to develop the factual basis for Claims 14 1(C), 9, and 14, but the Nevada courts failed to provide him an evidentiary hearing. He contends 15 he is entitled to a hearing on these claims under the first analysis above. 16 In Claim 1(C), Williams alleges that his trial counsel provided ineffective assistance of 17 counsel by advising him to enter a guilty plea to a burglary charge. ECF No. 153 at 30-31. The 18 respondents dispute Williams’ claim that he was deprived of an opportunity to develop facts in 19 support of the claim in state court, citing to an evidentiary hearing held in state court in 1984. 20 Williams points out that the 1984 evidentiary hearing occurred in a different proceeding 21 than the one in which he exhausted state court remedies for Claim 1(C). See ECF No. 165 at 15 22 (“Claim 1(C) was exhausted in the state post-conviction proceeding that Williams initiated on 23 July 6, 1988, in the Second Judicial District Court and concluded on July 12, 1988, when the 24 Nevada Supreme Court dismissed his appeal.”). Williams is correct that the state court did not 25 conduct an evidentiary hearing on the 1988 petition. But that does not excuse his failure to 26 develop the factual basis for the claim in state court. 27 1 In reaching this conclusion, I look to the Ninth Circuit’s treatment of Claim 1(G). 2 Williams presented that claim in his 1992 state petition. Williams, 908 F.3d at 571. In affirming 3 this court’s finding that Williams failed to develop the factual basis of Claim 1(G) in state court, 4 the Ninth Circuit reasoned that “[a]ll of the information contained in the documentary evidence 5 at issue could have been presented in Williams’ first petition for state post-conviction relief in 6 1984, had his counsel been diligent in discovering it.” Id. at 572 (parenthetical omitted). Thus, 7 even though Claim 1(G) was not presented until a later proceeding, the Ninth Circuit found lack 8 of diligence based on counsel’s failure to develop the factual basis for the claim in Williams’ 9 first state post-conviction proceeding in 1984. The same reasoning applies to Claim 1(C). On 10 that basis, Williams’ request to expand the evidentiary hearing to include Claim 1(C) is denied. 11 In Claim 9, Williams alleges a violation of his constitutional rights due to the trial court’s 12 admission of his statements made in custody after his request to consult with an attorney. ECF 13 No. 135 at 88-92. In Claim 14, Williams alleges a violation of his constitutional rights because 14 his trial was held in “an unfairly prejudicial atmosphere” and the trial court refused to change the 15 venue of the trial. Id. at 106-11. The respondents argue that both claims are barred under the 16 holding in Tollett v. Henderson, 411 U.S. 258 (1973). 17 In Tollett, the United States Supreme Court held that: a guilty plea represents a break in the chain of events which has preceded it in the 18 criminal process. When a criminal defendant has solemnly admitted in open court 19 that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional 20 rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea. . . . 21 22 411 U.S. at 267. 23 Williams argues Tollett does not bar Claim 9 because the statements at issue were 24 admitted during the penalty phase of his trial. While he does not cite any authority for this 25 position, the respondents fail to address it in their response. ECF No. 280 at 2, 17-19. Because 26 the alleged constitutional error arguably occurred when the statements were admitted, as opposed 27 1 to when they were taken, I am not convinced that Tollett bars Claim 9. Nonetheless, Williams 2 has not met the burden of showing he was diligent in developing the factual basis for this claim 3 in state court. 4 Prior to trial, Williams’ trial counsel filed a motion to suppress the statements, which the 5 trial court denied. ECF No. 173-2 at 17-22; ECF No. 285-1; ECF No. 285-2. Williams raised the 6 issue in a consolidated direct appeal and appeal from his first post-conviction proceeding. ECF 7 No. 173-15 at 45-52. His opening brief in that appeal includes a concession that trial counsel 8 and post-conviction counsel were ineffective by not pursuing a Jackson v. Denno hearing.2 Id. at 9 52. Williams raised the issue again in his 1988 state post-conviction petition.3 The court did not 10 hold a hearing in that proceeding, but as discussed above in relation to Claim 1(C), that does not 11 excuse his failure to develop the factual basis for the claim in an earlier proceeding. Section 12 2254(e)(2) bars an evidentiary hearing on Claim 9. 13 Williams argues Tollett does not bar Claim 14 because the trial court’s refusal to grant a 14 change of venue rendered his guilty plea involuntary. The respondents dispute this by noting 15 that Williams made only scant references in his appellate briefing to venue impacting his plea 16 decision. ECF No. 280 at 19 (citing ECF No. 173-15 at 37, 45). Here again, however, I need not 17 resolve the Tollett issue because Williams has not demonstrated that his failure to develop the 18 factual basis for the claim in state court was attributable to something other than his lack of 19 diligence. 20

21 2 A Jackson v. Denno hearing is an evidentiary hearing, outside the presence of the jury, where 22 the court inquires as to the voluntariness of the defendant’s confession. Jackson v. Denno, 378 U.S. 368, 392 (1964). The hearing allows the court to determine the factual context surrounding 23 a defendant’s confession. Id.

24 3 Williams filed two state post-conviction petitions in 1988, one in in the Second Judicial District on or about July 6, 1988, and one in the First Judicial District on or about July 8, 1988. ECF No. 25 173-16 at 9-23. Both petitions were dismissed by the respective courts, and the appeal by the 26 Supreme Court of Nevada addressed the denial of the petitions in a single combined appeal. Id. at 25-27. In that appeal, the court found that each of the claims was defaulted because they were, 27 or could have been, brought previously. Id. 1 Prior to trial, Williams’ trial counsel filed a motion for change of venue, which the trial 2 court denied. ECF No. 173-2 at 29-43. As with Claims 1(C) and 9, Williams did not avail 3 himself of the opportunity to develop facts in support the claim in state court prior to raising the 4 claim again in his 1988 state post-conviction petition. Thus, section 2254(e)(2) bars an 5 evidentiary hearing on Claim 14. 6 2. Claims 1(D), 1(E), 1(I), and 1(J) 7 Claims 1(D), 1(E), 1(I), and 1(J) allege ineffective assistance of counsel. These are 8 procedurally defaulted because Williams presented them for the first time in a 2003 state petition 9 that the Supreme Court of Nevada dismissed as untimely under Nevada law. ECF No. 165 at 4- 10 13; Williams, 908 F3d at 561 n. 1. In Claim 1(D), Williams alleges that his trial counsel 11 provided ineffective assistance of counsel during the jury selection phase of his trial. ECF No. 12 153 at 31-34. In Claim 1(E), he alleges counsel was ineffective by inducing him to plead guilty 13 based upon her claim that she was personal friends with the trial judge, who would not sentence 14 him to death. Id. at 34-35. In Claim 1(I), he alleges counsel was ineffective by allowing her 15 defense strategy to be disclosed to co-defendant’s counsel. Id. at 56-57. In Claim 1(J), he alleges 16 counsel was ineffective by failing to raise certain objections or bring certain motions. Id. at 57- 17 58. 18 As mentioned above, the Ninth Circuit has directed this court to determine whether 19 Williams’ procedural default of these claims is excused under the rule established in Martinez v. 20 Ryan. Williams, 908 F3d at 561 n. 1. In Martinez, the Supreme Court created a narrow, equitable 21 exception to the rule of Coleman v. Thompson, 501 U.S. 722 (1991), that attorney error cannot 22 provide cause for a procedural default if a petitioner had no constitutional right to counsel in a 23 proceeding in which the default occurred. 566 U.S. at 9. The Court held that “a procedural 24 default will not bar a federal habeas court from hearing a substantial claim of ineffective 25 assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel 26 in that proceeding was ineffective.” Id. at 17. 27 1 Williams argues he is entitled to an evidentiary hearing to establish both the 2 ineffectiveness of his counsel in his initial post-conviction review proceeding and the merits of 3 the underlying ineffective assistance of counsel claims. Section 2254(e)(2) does not restrict the 4 court from holding an evidentiary hearing for this purpose. Jones v. Shinn, 943 F.3d 1211, 1215 5 (9th Cir. 2019) (“We hold that 28 U.S.C. § 2254(e)(2), which precludes evidentiary hearings on 6 claims that were not developed in state court proceedings, did not prohibit the district court from 7 considering the evidence adduced at the Martinez hearing to determine the merits of 8 [petitioner’s] underlying IAC claim.”). William does not identify, however, a factual issue 9 raised by his defaulted IAC claims that requires an evidentiary hearing to resolve. Both the 10 Martinez issue and the underlying merits of these claims can be resolved based on the existing 11 state court record. Thus, Williams’ request for an evidentiary hearing on these claims is denied. 12 See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“It is axiomatic that when issues can 13 be resolved with reference to the state court record, an evidentiary hearing becomes nothing 14 more than a futile exercise.”); see also Beardslee v. Woodford, 358 F.3d 560, 585 (9th Cir. 15 2004). 16 I THEREFORE ORDER that Williams’ motion for an evidentiary hearing (ECF No. 17 204) is GRANTED in part. The motion is granted with respect to Ground 1(H). The motion is 18 DENIED in all other respects. 19 Due to the COVID-19 pandemic, the court is presently limiting the number of in-person 20 hearings. In order to facilitate scheduling the hearing, I order counsel to confer about at least the 21 following issues: 22 (1) whether the evidentiary hearing can be conducted by video conference instead of in- 23 person; 24 (2) if the hearing is to be conducted in person, how much time is needed to arrange to 25 transport Mr. Williams to Las Vegas for the hearing; 26 (3) how much time counsel needs with Mr. Williams to prepare for the hearing; 27 1 (4) how many witnesses will be called at the hearing (and their identities); 2 (5) how long the hearing will last; 3 (6) whether there will be any expert witnesses and whether expert reports will be 4 produced; 5 (7) whether any pre-hearing motions or briefs are anticipated; and 6 (8) when the parties prefer the hearing to be scheduled. 7 By January 11, 2021, the parties shall file a joint Notice specifying this information (and 8 || their disagreements, if any). I will use that information when scheduling the evidentiary hearing. 9 Dated: November 28, 2020 10 11 oo ANDREW P. GORDON 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28