Delapinia v. Johnson

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 RYAN L. DELAPINIA, Case No. 2:17-cv-02376-MMD-DJA

7 Petitioner, ORDER v. 8 BRIAN WILLIAMS, SR., et al., 9 Respondents. 10 11 I. SUMMARY 12 This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the Court 13 is Respondents' motion to dismiss (“Motion”).1 (ECF No. 26.) Respondents initially argued 14 that Petitioner Ryan Delapinia had not exhausted three claims for relief. Respondents 15 have now withdrawn their arguments for two of those claims. As to the remaining claim, 16 the parties agree that it is technically exhausted because it is procedurally defaulted. The 17 parties also agree that they should address the procedural default in an answer on the 18 merits. To that extent, the Court grants in part the Motion. 19 II. BACKGROUND 20 Pursuant to a guilty-plea agreement, Delapinia was convicted of one count each 21 of sexual assault with the use of a deadly weapon, first-degree kidnaping with the use of 22 a deadly weapon, burglary, and robbery with the use of a deadly weapon. (ECF No. 17- 23 5.) 24 Delapinia appealed. The Nevada Supreme Court held that the state district court 25 had not made the required factual findings for imposition of the deadly-weapon sentences 26 under NRS § 193.165(1). The Nevada Supreme Court reversed in part and remanded for 27 28 1Petitioner filed an opposition (ECF No. 35) and Respondents have replied (ECF 2 17-8 at 2, 5 n.2.) The Nevada Supreme Court rejected Delapinia's other arguments. 3 The state district court resentenced on the deadly-weapon enhancements and 4 entered an amended judgment of conviction. (ECF Nos. 17-10, 17-11.) Delapinia did not 5 appeal the amended judgment of conviction. 6 Delapinia then filed a counseled post-conviction habeas corpus petition in the state 7 district court. (ECF No. 17-12.) Delapinia filed that petition more than a year after the 8 Nevada Supreme Court issued its direct-appeal remittitur but less than a year after the 9 state district court entered the amended judgment of conviction. The state district court 10 held that the petition was timely under Nevada's one-year statute of limitations, NRS 11 § 34.726(1), because the sentences did not become final until the amended judgment 12 became final. (ECF No. 22-15 at 6-7.) The state district court then denied the petition on 13 the merits. (Id. at 8-11.) Delapinia appealed. The Nevada Supreme Court affirmed. (ECF 14 No. 22-20.) 15 III. LEGAL STANDARD 16 Before a federal court may consider a petition for a writ of habeas corpus, the 17 petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To 18 exhaust a ground for relief, a petitioner must fairly present that ground to the state’s 19 highest court, describing the operative facts and legal theory, and give that court the 20 opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 21 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982). 22 Respondents initially argued that grounds 2(b), 4(b), and 4(c) were not exhausted. 23 (ECF No. 26.) Respondents have withdrawn their arguments regarding grounds 2(b) and 24 4(b). (ECF No. 39 at 3.) 25 Ground 4(c) is a claim that trial counsel failed to consult with Delapinia about a 26 direct appeal after resentencing. (ECF No. 25 at 22.) See also Roe v. Flores-Ortega, 528 27 U.S. 470 (2000). Delapinia acknowledges in the Second Amended Petition that he did not 28 litigate the claim in ground 4(c) in state courts. (ECF No. 25 at 20.) 2 exhausted but procedurally defaulted. (Id.) Delapinia explains that if he presents these 3 claims to the state courts now, the state statute of limitations (NRS § 34.726(1)) and the 4 state bar against second or successive petitions (NRS § 34.810) would apply. (ECF No. 5 35 at 6.) Although those statutes allow for a showing of good cause and prejudice to 6 excuse their operation, Delapinia states that he has no showing of good cause that the 7 state courts would accept. (Id. at 6-7.) On the other hand, Delapinia argues that he does 8 have a showing of good cause that this Court could accept: State post-conviction counsel 9 provided ineffective assistance by not raising these claims in his post-conviction 10 proceedings before the state district court. See Martinez v. Ryan, 566 U.S. 1, 14 (2012). 11 But Nevada does not accept ineffective assistance of post-conviction counsel as good 12 cause to excuse the state-law procedural bars. Brown v. McDaniel, 331 P.3d 867, 870- 13 75 (Nev. 2014). 14 The Court prefers to address these matters in the same manner that it often does 15 when a claim of cause and prejudice is based upon an independent claim of 16 constitutionally ineffective assistance of either trial or appellate counsel. In such 17 circumstances, the Court often defers a resolution of the cause-and-prejudice analysis 18 until after the filing of an answer and reply where the parties contingently address to 19 address the claims on the merits. This approach gives the Court the benefit in its analysis 20 of a full factual and legal presentation as to all relevant claims. The Court will adopt this 21 approach here. 22 IV. CONCLUSION 23 It is therefore ordered that Respondents' motion to dismiss (ECF No. 26) is granted 24 in part with respect to ground 4(c) and denied in part with respect to grounds 2(b) and 25 4(b). 26 It is further ordered that the Court defers consideration of whether Petitioner can 27 demonstrate cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), to 28 1 || overcome the procedural default of ground 4(c) until after an answer and reply have been 2 || filed in this action. 3 It is further ordered that Respondents will have 45 days from the date of entry of 4 || this order to file and serve an answer, which must comply with Rule 5 of the Rules 5 || Governing Section 2254 Cases in the United States District Courts. Petitioner will have 6 || 45 days from the date on which the answer is served to file a reply. 7 8 DATED THIS 20* day of May 2020. 9

11 CHIEF UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28