Damien Phillips v. Nevada Department of Corrections

• Court: District Court, D. Nevada
• Decided: March 31, 2026
• Docket: 2:23-cv-00599
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 DAMIEN PHILLIPS, Case No. 2:23-cv-00599-ART-BNW

6 Petitioner, ORDER v. 7 NEVADA DEPARTMENT OF 8 CORRECTIONS,

9 Respondents.

10 11 This habeas matter is brought by Petitioner Damien Phillips. Respondents 12 filed a Motion to Dismiss (ECF No. 53) the first amended petition as untimely, 13 Grounds 1 and 2 as unexhausted, Grounds 3(A) and (B) as unexhausted, in part, 14 and Ground 2 as procedurally defaulted. The Court finds equitable tolling is 15 warranted and denies Respondents’ Motion to Dismiss. 16 I. Background 17 Phillips challenges a state court conviction for conspiracy to commit 18 burglary, conspiracy to commit robbery, six counts of burglary while in 19 possession of a deadly weapon, nine counts of robbery with use of a deadly 20 weapon, three counts of assault with a deadly weapon, and one count of assault 21 with a deadly weapon, victim 60 years of age or older. The state court sentenced 22 Phillips to an aggregate term of 24 to 80 years. The Nevada Supreme Court 23 affirmed the conviction. 24 Phillips filed a state petition for writ of habeas corpus. The state district 25 court denied his state habeas petition and he did not appeal the denial of that 26 petition. On October 13, 2021, Phillips filed another state habeas petition, and 27 the state district court denied his second state habeas petition. The Nevada Court 28 of Appeals affirmed the denial of relief finding his petition untimely and 1 successive. 2 On March 30, 2023, Phillips initiated this habeas corpus proceeding. ECF 3 No. 2-3. Following the appointment of counsel, Phillips filed his first amended 4 petition on December 11, 2024, raising three grounds for relief. ECF No. 44. 5 Respondents move to dismiss the first amended petition as untimely arguing that 6 he filed his original pro se petition beyond the expiration of the one-year statute 7 of limitations. ECF No. 53. In the alternative, Respondents argue that Grounds 1 8 and 21 are unexhausted, Ground 3(A) and (B) are unexhausted, in part, and that 9 Ground 2 is procedurally defaulted. Id. 10 II. Discussion 11 a. Timeliness 12 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 13 one-year limitation period for state prisoners to file a federal habeas petition 14 pursuant to 28 U.S.C. § 2254. The AEDPA limitations period is tolled while a 15 “properly filed” state post-conviction proceeding, or other collateral review is 16 pending. 28 U.S.C. § 2244(d)(2). No statutory tolling is permitted for the time that 17 a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181–82 18 (2001). 19 Here, Phillips’s conviction became final after the time expired for filing a 20 petition for writ of certiorari with the United States Supreme Court on August 17, 21 2020.2 Phillips filed his state habeas petition on March 30, 2021, tolling the 22 AEDPA clock. As a result, 225 days elapsed between the finality of the judgment 23 and the filing of the state habeas petition. The state district court denied 24 Phillips’s state habeas petition on August 24, 2021. The time to appeal the order 25 expired on September 27, 2021, but Phillips did not file an appeal. The remaining

26 1 In their reply, Respondents withdraw their argument that Ground 2 is 27 unexhausted. ECF No. 72 at 19. 2 The Supreme Court extended the time to file certiorari from 90 days to 150 days 28 due to the COVID-19 pandemic. 1 140 days of the AEDPA limitations period were statutorily tolled until September 2 27, 2021. The AEDPA clock restarted the following day and expired 140 days later 3 on February 14, 2022. 4 The parties agree that Phillips filed his federal petition after the one-year 5 limitation period under AEDPA expired. Phillips concedes that his federal petition 6 was filed 409 days after the February 14, 2022, deadline. ECF No. 66 at 3. Phillips 7 argues that he can overcome any timeliness bar because he is entitled to 8 equitable tolling. 9 b. Equitable Tolling 10 The one-year period of limitation of 28 U.S.C. § 2244(d)(1) is subject to 11 equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010). “[A] ‘petitioner’ 12 is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his 13 rights diligently, and (2) that some extraordinary circumstance stood in his way’ 14 and prevented timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 15 408, 418 (2005)). Equitable tolling does not stop the limitations clock the way 16 that statutory tolling does. 17 An “external force”—not mere “oversight, miscalculation, or negligence”— 18 must have caused the untimeliness. See Velasquez v. Kirkland, 639 F.3d 964, 19 969 (9th Cir. 2011) (citation omitted). In addition, a causal relationship must 20 exist between the extraordinary circumstance and the late filing. See, e.g., Bryant 21 v. Ariz. Att'y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007). A petitioner “must show 22 that he has been reasonably diligent in pursuing his rights not only while an 23 impediment to filing caused by an extraordinary circumstance existed, but before 24 and after as well, up to the time for filing his claim in federal court.” Smith v. 25 Davis, 953 F.3d 582, 598–599 (9th Cir. 2020). 26 A petitioner bears a heavy burden to show that he is entitled to equitable 27 tolling, “lest the exceptions” to the timeliness requirement “swallow the rule.” 28 Rudin v. Myles, 781 F.3d 1043, 1054-55 (9th Cir. 2014) (internal quotation 1 omitted). However, the grounds for granting equitable tolling also are highly fact- 2 dependent, id., and the equitable doctrine is to be applied flexibly on a case-by- 3 case basis, eschewing the mechanical rules. Holland, 560 U.S. at 649-50. As the 4 Ninth Circuit observed in Rudin, “At bottom, the purpose of equitable tolling is to 5 ‘soften the harsh impact of technical rules which might otherwise prevent a good 6 faith litigant from having [his] day in court.’” 781 F.3d at 1055 (quoting United 7 States v. Buckles, 647 F.3d 883, 891 (9th Cir. 2011)). 8 i. State Habeas Proceedings and Prison Impediments 9 Phillips argues that he is entitled to equitable tolling because his state 10 habeas proceedings were irregular as well as misleading and because the Nevada 11 Department of Corrections (“NDOC”) created impediments to filing, such as delay 12 of legal mail, limited access to legal resources, a broken law library printer, and 13 the failure to provide Phillips with glasses. 14 After the state appellate court affirmed his judgment of conviction in March 15 2020, Phillips filed a motion to withdraw his trial counsel from the case and 16 requested that counsel provide Phillips with his case file. His counsel 17 acknowledged to the state district court that he provided Phillips with his paper 18 file, but that counsel did not send the trial transcripts to Phillips. ECF No. 50-24 19 at 4-7. Counsel could not send Phillips a hard drive, CDs, or DVDs because 20 NDOC did not permit Phillips to possess them. It appears that counsel sent the 21 trial transcripts to Phillips in December 2020. ECF No. 50-26 at 4. 22 Phillips filed his first state habeas petition in March 2021. The stamp on 23 the envelope of the petition was dated March 18, 2021, and the state district 24 court filed it on March 30, 2021. ECF No. 50-28. On April 1, 2021, the state 25 district court instructed the State to respond to Phillips’s state habeas petition 26 and set the matter for hearing for June 7, 2021. ECF No. 50-31. On April 28, 27 2021, the state district court entered an order to transport Phillips to the court 28 for the hearing. ECF No. 50-33. On May 4, 2021, Phillips mailed a motion 1 requesting his presence at the hearing and the motion was not filed until May 25, 2 2021. 3 The state district court held the hearing and denied Phillips’s petition and 4 accompanying motions. Phillips was not transported to the hearing. On July 8, 5 2021, the state district court filed a notice of motion from Phillips that included 6 letters to the state district court judge. ECF No. 50-38. In a letter dated June 14, 7 2021, Phillips explained that he received the State’s response to his petition and 8 that he was in the process to responding to it but that it was “extremely difficult 9 to respond as I have no law library access.” Id. at 3. In addition, Phillips was 10 “clueless as to the actions or any orders the judge made,” at the hearing and 11 requested a 45-day extension to respond to the State. Id. He requested the state 12 district court order the prison to give him at least two hours a day in the law 13 library because “unless there is a court order, we have no access to law library.” 14 Id. at 3-4. 15 In a letter dated June 29, 2021, Phillips provided that it was difficult not 16 having the financial ability to buy stamps to mail his motions, and corrections 17 officers refused to process his brass slips. ECF No. 50-38 at 9. He requested a 18 continuance to file a reply to his petition, the minutes from the hearing, and a 19 court order for access to the law library. Id. at 10. 20 On August 4, 2021, the state district court filed a motion for amended 21 habeas corpus petition dated July 20, 2021, filed by Phillips. In the motion, 22 Phillips expressed the difficulty of drafting his habeas petition without discovery 23 and reiterated his need for counsel. ECF No. 50-39. He informed the state district 24 court that his access to legal resources was “close to none.” Id. at 5. On August 25 21, 2021, the state district court filed its Findings of Fact, Conclusions of law 26 denying Phillips’ state habeas petition. 27 On October 13, 2021, Phillips filed a second state habeas petition. ECF No. 28 50-43. In response to the form question asking why Phillips did not appeal an 1 adverse action on any petition, he provided that the “grounds were dismissed as 2 bare and naked claims. So I got the evidence and re-filed.” Id. at 5. In November 3 2021, the state district court entered a minute order that the State did not need 4 to respond to the petition because it raised the same claims as were filed in the 5 first petition. In the same minute order, the state district court denied Phillips’s 6 second state habeas petition “for the same reasons set forth in the Findings of 7 Fact and Conclusions of law” denying his first state habeas petition. 8 On January 13, 2022, Phillips filed a notice of appeal. On February 1, 2022, 9 the Nevada Supreme Court ordered the state district court to file a written 10 decision. ECF No. 50-46. On March 7, 2022, Phillips filed a motion for 11 enlargement of time requesting the record of appeal and more time to file his 12 opening brief due to “covid and the kite and mail service to the law library, the 13 cases needed to add to the opening brief are being delayed.” ECF No. 50-47 at 4. 14 Phillips informed the court that he had an eye issue, needed glasses, and that he 15 has informed NDOC of his need for glasses. Id. 16 On March 22, 2022, the state district court filed its Findings of Fact, 17 Conclusions of Law finding that Phillips “does not raise any new issues outside 18 the previously denied first Petition,” and adopted and incorporated its August 21, 19 2021, Findings of Fact, Conclusions of Law. On March 25, 2022, the Nevada 20 Supreme Court filed an order concluding that “review of the complete record is 21 warranted,” and directed the clerk of the district court to file a certified copy of 22 the complete trial court record. ECF No. 51-1 at 2. The Nevada Supreme Court 23 granted Phillips’ motion for permission to exceed page limit and filed his opening 24 brief. ECF Nos. 51-7, 51-8. The court also indicated that the State did not need 25 to file a response to Phillips’s opening brief unless subsequently directed by the 26 court. ECF No. 51-11. 27 On November 9, 2022, the Nevada Court of Appeals determined that 28 Phillips’s petition was untimely, successive, and procedurally barred. ECF No. 1 51-12. The state appellate court noted that Phillips “failed to address the 2 procedural bars in his petition below, nor [did] he make any argument regarding 3 them on appeal.” Id. On December 7, 2022, Phillips submitted a letter requesting 4 rehearing to the Nevada Court of Appeals, which was filed on December 14, 2022. 5 ECF No. 51-15 at 9-11. Phillips explained to the Nevada appellate court that he 6 sent a request to the law library for caselaw, and statutes cited in the decision, 7 on the day that he received the order of affirmance. Id. at 9. On the same day, 8 Phillips had an hour of library time, but the printers were broken, so Phillips had 9 to handwrite notes, and the statutes cited by the Nevada Court of Appeals. In 10 that context, he added, “I kindly request this to excuse me if I haven’t satisfied 11 any time constraint to turn this motion in to the court.” Id. 12 In his request for rehearing, Phillips stated that he did not address the 13 procedural bars because he did not know he was procedurally barred. ECF No. 14 51-14 at 15. On December 28, 2022, the request for rehearing was returned to 15 Phillips unfiled because “a petition for rehearing may be filed within 18 days after 16 the filing of the court’s decision pursuant to Rule 36 unless the time is shortened 17 or enlarged by order.” Id. at 2. Phillips did not receive the rejection of his request 18 for rehearing until January 19, 2023. ECF No. 15-51 at 2. 19 On January 29, 2023, Phillips sent a motion to recall the remittitur and 20 request to file a petition for rehearing to the Nevada Supreme Court. ECF No. 51- 21 15 at 2-8. Phillips reiterated to the Nevada appellate court that there was a lack 22 of access to the law library, broken printers, unavailability of officers to sign brass 23 slips required for mailing, and the prison’s failure to deliver legal mail within 24 24 hours. Id. at 3-5. He provided that during November and December 2022, the 25 prison was locked down and during lock downs, he did not have law library 26 access. Id. at 4. On February 17, 2023, the Nevada Supreme Court denied his 27 request, returning the petition as unfiled. ECF No. 51-16. Phillips mailed his 28 federal petition on March 30, 2023. 1 Phillips provides that throughout his state court proceedings he needed 2 glasses because he cannot see well up-close, and his eyes are sensitive to light. 3 ECF No. 65-6 at 2. Despite first requesting glasses on June 15, 2021, and again 4 on June 21, 2021, Phillips did not see an eye doctor until June 23, 2023, and did 5 no receive glasses until July 7, 2023. ECF Nos. 65-1, 65-2, 65-4. Without glasses, 6 Phillips could only read at certain times of the day when his cell was well-lit, and 7 that he had to put his paperwork next to the window to read. He could only read 8 for 10-15 minutes at a time before needing a break for about half an hour due to 9 blurry vision. ECF No. 65-6 at 2. 10 In addition, Phillips was not able to go to the law library until 2022. Id. at 11 3. Before that, he had to send information request forms, where he would write 12 down the case he wanted and then the law library would print it and send it to 13 him. Phillips would request cases from court documents or cases his friends told 14 him about. Id. at 3. 15 ii. Analysis 16 The Court finds that the specific circumstances and confluence of factors 17 of Phillips’s case warrant equitable tolling of the AEDPA limitations period. As 18 discussed above, Phillips was not able to go to the law library until 2022. Before 19 that, he had to send information request forms, where he would write down the 20 case he wanted and then the law library would print it and send it to him. Phillips 21 sent numerous requests for appointment of counsel to the state district court, 22 detailed his lack of access to the law library and legal resources, and submitted 23 multiple requests that the state district court order the prison to grant him access 24 to the law library. Phillips also provides support for his contentions that he had 25 difficulty reading and writing due to his issues with his eyesight and sensitivity 26 to light and needed glasses, which he never received until after he filed his federal 27 habeas petition in July 2023. 28 Equitable tolling may be appropriate where a court misleads a habeas 1 petitioner. Pliler v. Ford, 542 U.S. 225, 234 (2004); Sossa v. Diaz, 729 F.3d 1225, 2 1235 (9th Cir. 2013) (petitioner entitled to equitable tolling where he reasonably 3 relied on magistrate judge's extensions of time to file timely habeas petition). 4 Although Phillips filed a second state habeas petition, rather than appealing the 5 denial of that petition to the Nevada appellate courts, the state district court 6 denied his second state habeas petition without indicating that it was untimely 7 or successive, prolonging the state habeas proceedings. 8 Once Phillips knew that his second state habeas petition was untimely and 9 successive, he acted with diligence to protect his rights. Huizar, 273 F.3d at 1224 10 (describing a petitioner as reasonably diligent even when he waited 21 months to 11 hear from a state court before seeking an update). In just over four months after 12 understanding that his second state habeas petition was untimely and successive 13 and about just one month after the denial of his request for rehearing, Phillips 14 was able to file a federal habeas petition. He managed to do so without counsel, 15 without glasses to address his issues with eyesight, and without consistent 16 access to the law library or to a librarian. 17 In addition, the Court observes that the delay here is not as lengthy 18 compared to others that received the benefits of equitable tolling. See Rudin, 781 19 F.3d at 1053 (petition filed seven years after the deadline); Huizar v. Carey, 273 20 F.3d 1220, 1224 (9th Cir. 2001) (three years). 21 Accordingly, the Court finds that the specific circumstances and 22 confluence of factors of Phillips’s case warrant equitable tolling of the AEDPA 23 limitations period. On the facts presented, Phillips is owed his day in court. 24 III. Relation Back 25 A new claim in an amended petition that is filed after the expiration of the 26 AEDPA one-year limitation period will be timely only if the new claim relates back 27 to a claim in a timely-filed pleading. Fed. R. Civ. P. 15(c). An untimely amendment 28 properly “relates back to the date of the original pleading” as long as it arises out 1 of the same “conduct, transaction, or occurrence.” Id. “Relation back depends on 2 the existence of a common core of operative facts uniting the original and newly 3 asserted claims.” Mayle v. Felix, 545 U.S. 644, 659 (2005). 4 New claims in an amended habeas petition do not arise out of “the same 5 conduct, transaction or occurrence” as prior claims merely because they 6 challenge the same trial, conviction, or sentence. Mayle, 545 U.S. at 661; Hebner 7 v. McGrath, 543 F.3d 1133, 1134 (9th Cir. 2008). Rather, to properly relate back, 8 a new claim must arise from the same collection of facts alleged in the earlier 9 petition. Mayle, 545 U.S. at 661; Schneider v. McDaniel, 674 F.3d 1144, 1151 (9th 10 Cir. 2012) (holding that one shared fact in two divergent legal theories was “not 11 sufficient to conclude that they arise out of a common core of operative facts.”). 12 An amended habeas petition “does not relate back (and thereby escape AEDPA’s 13 one-year time limit) when it asserts a new ground for relief supported by facts 14 that differ in both time and type” from those alleged in the timely petition. Mayle, 15 545 U.S. at 650. The Court is “obligated to ‘liberally construe[ ] documents filed 16 pro se,’” like Phillips’s original petition. Ross v. Williams, 950 F.3d 1160, 1173 17 n.19 (9th Cir. 2020) (en banc). 18 Phillips argues that Respondents have waived any relation back argument 19 because it was not raised in their motion to dismiss. Other than a footnote in 20 their motion to dismiss stating that Respondents do not waive the relation back 21 defense should the Court find that Phillips’s petition is timely, Respondents did 22 not identify particular claims in Phillips’s amended petition that arguably do not 23 share “a common core of operative facts,” with timely filed claims. Mayle, 545 24 U.S. at 659. Respondents’ failure to address their relation-back arguments on a 25 claim-by-claim basis in their motion to dismiss deprived Phillips of a fair 26 opportunity to address the relation-back arguments because, otherwise, the 27 heart of the matter would not be reached until Respondents filed their reply brief. 28 Respondents did not specifically allege what claim or facts don’t relate back in 1 their motion to dismiss before Phillips could prove that they do. Phillips cannot 2 respond to an allegation that is not actually made. 3 Respondents cite Ross v. Williams, 950 F.3d 1160 (9th Cir. 2020) for the 4 proposition that petitioners have the burden of proving relation back. In Ross, 5 the Ninth Circuit noted that the State filed a motion to dismiss which “contended 6 that the amended petition's claims did not relate back to Ross's concededly timely 7 original petition because the original petition lacked factual allegations.” 950 F.3d 8 at 1165. It was only the specific allegation as to why the claims in the timely 9 petition failed to relate back that triggered the petitioner's burden to prove 10 relation back. Indeed, the motion to dismiss in Ross contained a lengthy 11 argument on relation back. Counsel for Ross was not required to guess which 12 claims were at issue in order to file a response because the motion to dismiss was 13 plead with specificity. 14 The Court’s scheduling order instructed Respondents to raise all potential 15 defenses in a single, non-sequential dismissal motion. The statute of limitations 16 is an affirmative defense, and where the State fails to raise the defense to claims 17 in an amended petition, the defense is waived. See, Chaker v. Crogan, 428 F.3d 18 1215, 1220 (9th Cir. 2005), citing Nardi v. Stewart, 354 F.3d. 1134, 1141 (9th 19 Cir. 2004). Here, Respondents, by failing to state which, if any, claims in the 20 amended petition do relate back (while simultaneously acknowledging the 21 relation back doctrine) have waived the defense. Phillips can't be required to 22 guess which claim or claims need to be proven to relate back, if any. Respondents 23 misunderstand their burden; Respondents must set forth specific allegations of 24 untimeliness or lack of relation back before Phillips is required to prove relation 25 back. Accordingly, the Court rejects Respondents’ argument that Grounds One, 26 3(A), and 3(B) do not relate back. 27 IV. Exhaustion 28 A state prisoner first must exhaust state court remedies on a habeas claim 1 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This 2 exhaustion requirement ensures that the state courts, as a matter of comity, will 3 have the first opportunity to address and correct alleged violations of federal 4 constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). 5 “A petitioner has exhausted his federal claims when he has fully and fairly 6 presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th 7 Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999)). To satisfy 8 the exhaustion requirement, a claim must have been raised through one complete 9 round of either direct appeal or collateral proceedings to the highest state court 10 level of review available. O’Sullivan, 526 U.S. at 844–45; Peterson v. Lampert, 319 11 F.3d 1153, 1156 (9th Cir. 2003) (en banc). A properly exhausted claim “‘must 12 include reference to a specific federal constitutional guarantee, as well as a 13 statement of the facts that entitle the petitioner to relief.’” Woods, 764 F.3d at 14 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)); Castillo v. 15 McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both the 16 operative facts and federal legal theory upon which a claim is based). 17 a. Ground 3(A) is exhausted. 18 In Ground 3(A), Phillips alleges that there was insufficient evidence to 19 support the use of the deadly weapon enhancement regarding Counts 3 through 20 13 where the State failed to prove that Phillips was actually armed with a deadly 21 weapon in violation of his due process rights. ECF No. 44 at 14. Respondents 22 argue that Ground 3(A) is unexhausted in part because Phillips failed to fairly 23 present key factual allegations to the Nevada appellate courts on direct appeal. 24 Respondents assert that Phillips relies on new facts, such as the surveillance 25 footage from earlier robberies did not show a deadly weapon and that the 26 prosecution charged Phillips’s co-defendant with carrying a concealed pneumatic 27 gun on a specific date, but did not charge either defendant for carrying a 28 concealed weapon in earlier incidents. 1 The Court finds that Phillips’s references to surveillance footage or the 2 prosecution’s decision to charge Phillips’s co-defendant with carrying a concealed 3 weapon does not fundamentally alter his claim. The allegations may add some 4 further information, but nothing in Ground 3(A) fundamentally alters the 5 exhausted claim or places it in a different and significantly stronger posture than 6 when the claim was presented to the state courts. See generally Dickens v. Ryan, 7 740 F.3d 1302, 1318 (9th Cir. 2014). Ground 3(A) is exhausted. 8 b. Ground (B) is exhausted. 9 In Ground 3(B), Phillips alleges that there was insufficient evidence to 10 support a burglary conviction based on Phillips walking into and back out of a 11 grocery store. ECF No. 44 at 17. Respondents argue that Ground 3(B) is 12 unexhausted in part because Phillips’s allegations now hinge on testimony of 13 Detective Karl Lippisch, which he did not allege in his direct appeal, to establish 14 that Phillips’s presence in the grocery store was for reconnaissance purposes 15 only. Similar to Ground 3(A), the legal basis of the claim has not changed, and 16 this claim is exhausted. See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 17 1999) (finding the exhaustion requirement satisfied even though the precise 18 factual predicate for the claim had changed after it was presented to the state 19 courts because the change did not fundamentally alter the legal basis for the 20 claim). 21 V. Procedural Default 22 Where a petitioner “has defaulted his federal claims in state court pursuant 23 to an independent and adequate state procedural rule,” federal review is barred 24 unless he “can demonstrate cause for the default and actual prejudice as a result 25 of the alleged violation of federal law or demonstrate that failure to consider the 26 claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 27 750. To demonstrate cause, the petitioner must establish some external and 28 objective factor impeded efforts to comply with the state’s procedural rule. E.g., 1 Maples v. Thomas, 565 U.S. 266, 280 (2012) (finding cause to excuse procedural 2 default due to attorney abandonment but remanding for a determination of 3 prejudice). “[T]o establish prejudice, [a petitioner] must show not merely a 4 substantial federal claim, such that ‘the errors … at trial created a possibility of 5 prejudice,’ but rather that the constitutional violation ‘worked to his actual and 6 substantial disadvantage.’” Shinn v. Ramirez, 596 U.S. 366, 379-80 (2022). 7 With one exception, Nevada’s cause and prejudice standards are 8 functionally identical to the federal standards for cause and prejudice. Robinson 9 v. Ignacio, 360 F.3d 1044, 1052 n. 3 (9th Cir. 2004). That exception is for a 10 procedurally defaulted claim of ineffective assistance of trial counsel when the 11 cause for the default is the ineffective assistance or absence of postconviction 12 counsel in the initial postconviction proceedings in accordance with Martinez v. 13 Ryan, 566 U.S. 1(2012). Brown v. McDaniel, 130 Nev. 565, 571-76 (2014). A 14 Nevada federal habeas petitioner who relies on Martinez—and only Martinez—as 15 a basis for overcoming a state procedural bar can successfully argue that the 16 state courts would hold the claim procedurally barred, but that he nonetheless 17 has a potentially viable argument for cause and prejudice under federal law. 18 Phillips asserts that he can demonstrate cause and prejudice to overcome 19 the procedural default of Grounds 1 and 2. 20 a. Ground 1 21 In Ground 1, Phillips alleges an ineffective assistance of counsel claim 22 based on counsel permitting sentencing to proceed with a judge other than the 23 one that presided over the trial. Here, it is clear that Phillips would 24 face multiple procedural bars if he were to return to state court with his 25 unexhausted claims. See, e.g., NRS 34.726, 34.810. He advances 26 only Martinez as a basis for excusing the anticipatory default of his ineffective 27 assistance of counsel claim. The Court thus reads Phillips’s opposition as a 28 concession that the only basis for cause as to any of the unexhausted ineffective 1 assistance of counsel claims would be Martinez, and will consider the remaining 2 grounds technically exhausted on that basis. 3 The Court defers ruling on whether the Ground 1 is procedurally defaulted 4 given the fact-intensive nature of the claim and Phillips’s cause and prejudice 5 arguments. The Court finds that these questions are inextricably intertwined with 6 the merits of the claims themselves. Accordingly, the Court will defer a 7 determination on whether Phillips can demonstrate cause and prejudice until the 8 time of merits determination. The motion to dismiss Ground 1 as procedurally 9 defaulted is denied. Respondents may renew the procedural default argument as 10 to the remaining grounds in their answer. 11 b. Ground 2 12 In Ground 2, Phillips alleges that counsel rendered ineffective assistance 13 for failure to move to suppress evidence obtained by means of a GPS tracker. 14 Respondents argue that Ground 2 is procedurally defaulted because the Nevada 15 Court of Appeals denied Phillips’s second state habeas petition as untimely and 16 successive. Phillips concedes that because Ground 2 was dismissed on 17 procedural grounds on appeal, Ground 2 is procedurally defaulted. However, he 18 asserts that he can show cause and prejudice to overcome the default. 19 Because the question of whether Phillips can overcome the procedural 20 default of Ground 2 is intertwined with the merits of the claim, the Court defers 21 its determination of whether Phillips can excuse the procedural default of Ground 22 2 until the time of its merits decision. The Court denies the motion to dismiss as 23 to Ground 2 without prejudice to Respondents asserting the procedural default 24 defense to the claim in their Answer. 25 VI. Conclusion 26 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 53) is 27 denied. 28 It is further ordered that the Court defers its determination of whether 1 || Phillips can excuse the procedural default of Grounds 1 and 2 until the time of 2 || its merits decision. The Court denies the Motion to Dismiss as to Ground 1 and 3 || 2 without prejudice to Respondents asserting the procedural default defense to 4 || the claims in their answer. 5 It is further ordered that Respondents have until May 29, 2026, to file their 6 || answer. 7 It is further ordered that Phillips has 60 days after service of the answer to 8 || file his reply. 9 DATED THIS 31st day of March, 2026. 10 eset en 1] 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28