Elliott v. McDaniel

• Court: District Court, D. Nevada
• Decided: August 22, 2019
• Docket: 3:11-cv-00041
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ROBERT W. ELLIOTT, Case No. 3:11-cv-00041-MMD-CBC

7 Petitioner, ORDER v. 8 E.K. MCDANIEL, et al., 9 Respondents. 10 11 I. SUMMARY 12 Robert W. Elliott’s 28 U.S.C. § 2254 habeas corpus petition is before the Court on 13 Respondents’ motion to dismiss (“Motion”).1 (ECF No. 60.) For the reasons discussed 14 herein, the Motion is granted in part and denied in part. 15 II. BACKGROUND 16 On September 13, 2005, a jury convicted Elliott of two counts of robbery with use 17 of a deadly weapon in connection with a robbery at a Reno Dollar Tree store (Exhibits 18 (“Exh.”) 34, 35).2 The state district court sentenced him to two consecutive terms of 72 to 19 180 months, with two equal and consecutive terms for the deadly weapon enhancement. 20 (Exh. 40.) Judgment of conviction was filed on October 25, 2005. (Exh. 41.)3 21

22 1Elliott responded (ECF No. 66), and Respondents replied (ECF No. 73).

23 2Unless otherwise noted, exhibits referenced in this order are exhibits to Respondents’ motion to dismiss, ECF No. 60, and are found at ECF Nos. 61-63. Exhibits 24 to Petitioner’s amended petition, ECF No. 49, are found at ECF Nos. 50-53, and are 25 referred to as Petitioner’s exhibits (“Pet. Ex.”).

26 3In another jury trial that overlapped with this case, Elliott was convicted of one 1 Elliott appealed, and the Nevada Supreme Court affirmed his convictions in May 2 2006. (Exh. 55.) 3 Elliott filed a state postconviction petition for writ of habeas corpus. (Exh. 61.) The 4 state district court granted his motion for appointment of counsel, and Elliott filed a 5 supplemental petition. (Exh. 71.) Following an evidentiary hearing, the state district court 6 denied the petition. (Exhs. 84, 85.) The Nevada Supreme Court affirmed the denial of the 7 petition on December 10, 2010. (Exh. 99.) 8 Elliott originally dispatched this federal petition for writ of habeas corpus in January 9 2011. (ECF No. 5.) Through counsel, Elliott filed an amended petition in May 2018. (ECF 10 No. 49.) Respondents now move to dismiss most grounds of the amended petition as 11 unexhausted. (ECF No. 60.) 12 III. LEGAL STANDARD 13 State prisoners seeking federal habeas relief must comply with the exhaustion rule 14 codified in § 2254(b)(1):

15 An application for a writ of habeas corpus on behalf of a person in custody 16 pursuant to the judgment of a State court shall not be granted unless it appears that – 17 (A) The applicant has exhausted the remedies available in the courts of the 18 State; or

19 (B) (i) there is an absence of available State corrective process; or 20 (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. 21 22 The purpose of the exhaustion rule is to give the state courts a full and fair opportunity to 23 resolve federal constitutional claims before those claims are presented to the federal 24 court, and to “protect the state courts’ role in the enforcement of federal law.” Rose v. 25 Lundy, 455 U.S. 509, 518 (1982); O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see 26 also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 1 through direct appeal or state collateral review proceedings. See Casey v. Moore, 386 2 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 3 A habeas petitioner must “present the state courts with the same claim he urges 4 upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal 5 constitutional implications of a claim, not just issues of state law, must have been raised 6 in the state court to achieve exhaustion. See Ybarra v. Sumner, 678 F. Supp. 1480, 1481 7 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court 8 must be “alerted to the fact that the prisoner [is] asserting claims under the United States 9 Constitution” and given the opportunity to correct alleged violations of the prisoner’s 10 federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see also Hiivala v. Wood, 195 11 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a 12 simple and clear instruction to potential litigants: before you bring any claims to federal 13 court, be sure that you first have taken each one to state court.” Jiminez v. Rice, 276 F.3d 14 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). “[G]eneral 15 appeals to broad constitutional principles, such as due process, equal protection, and the 16 right to a fair trial, are insufficient to establish exhaustion.” Hiivala v. Wood, 195 F.3d 17 1098, 1106 (9th Cir. 1999) (citations omitted). However, citation to state caselaw that 18 applies federal constitutional principles will suffice. See Peterson v. Lampert, 319 F.3d 19 1153, 1158 (9th Cir. 2003) (en banc). 20 A claim is not exhausted unless the petitioner has presented to the state court the 21 same operative facts and legal theory upon which his federal habeas claim is based. See 22 Bland v. California Dep’t of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The 23 exhaustion requirement is not met when the petitioner presents to the federal court facts 24 or evidence which place the claim in a significantly different posture than it was in the 25 state courts, or where different facts are presented at the federal level to support the same 26 theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. 1 Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 2 (D. Nev. 1984). 3 IV. DISCUSSION 4 A. Grounds 5(B), 6 and 10 5 Respondents first argue out that Petitioner has acknowledged grounds 5(B), 6, and 6 10 are unexhausted. (ECF No. 60 at 9.) 7 In ground 5(B), Elliott argues that the sentencing judge had an “intolerable risk” of 8 bias against him in violation of his Fifth and Fourteenth Amendment rights. (ECF No. 49 9 at 31-34.) He contended that state district Judge Steven R. Kosach created the 10 appearance of bias because he repeatedly vouched for Elliott’s counsel, Kevin Van Ry, 11 who was the judge’s former law clerk, and repeatedly denied Elliott’s motions for new 12 counsel. Ground 6 contends that Van Ry rendered ineffective assistance of counsel 13 (“IAC”) for failing to ask Judge Kosach to recuse himself, in violation of Elliott’s Sixth and 14 Fourteenth Amendment rights. (ECF No. 49 at 34-35.) In ground 10, Elliott asserts IAC 15 for Van Ry’s failure to challenge the alleged duplicate robbery charges at trial. He argues 16 that Van Ry should have asked the court to give the jury a pre-deliberation advisory 17 verdict to the effect that it should return a guilty verdict (if any) on only one charge or ask 18 the court to instruct the jury that in order to convict Elliott of two crimes, the jury had to 19 find beyond a reasonable doubt that both employees had joint possession of and control 20 over the stolen funds. (ECF No. 49 at 39-40.) 21 Elliott concedes that these grounds are unexhausted. He instead urges this Court 22 to treat the claims as technically exhausted/procedurally defaulted. (ECF No. 66 at 18- 23 19.) “Procedural default” refers to the situation where a petitioner in fact presented a claim 24 to the state courts but the state courts disposed of the claim on procedural grounds, 25 instead of on the merits. A federal court will not review a claim for habeas corpus relief if 26 the decision of the state court regarding that claim rested on a state law ground that is 1 v. Thompson, 501 U.S. 722, 730-31 (1991). The Coleman Court explained the effect of a 2 procedural default:

3 In all cases in which a state prisoner has defaulted his federal claims in 4 state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can 5 demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the 6 claims will result in a fundamental miscarriage of justice. 7 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). 8 Elliott describes a claim as “technically exhausted” if the state courts would no 9 longer review it on the merits. Elliott acknowledges that would be the case if he tried to 10 submit a new petition with these claims to the state courts. First, the state courts would 11 find Elliott’s petition time-barred, because he would be filing it outside the one-year statute 12 of limitations. See NRS § 34.726. Second, the state courts would find Elliott’s petition 13 successive, because he has already filed a previous petition. See NRS § 34.810. Elliott 14 agrees that the state courts would almost certainly apply those procedural bars and 15 argues that therefore he does not have an available remedy in state court. However, he 16 asserts that he can demonstrate cause and prejudice to excuse the procedural default. 17 To demonstrate cause for a procedural default, the petitioner must be able to 18 “show that some objective factor external to the defense impeded” his efforts to comply 19 with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to 20 exist, the external impediment must have prevented the petitioner from raising the claim. 21 See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 22 In federal habeas cases arising out of Nevada, the state courts generally apply 23 substantially the same standards as the federal courts in determining whether a petitioner 24 can demonstrate either cause or actual innocence in order to overcome a claimed 25 procedural default. Thus, if the petitioner has a potentially viable cause-and-prejudice or 26 actual-innocence argument under the generally substantially similar federal and state 1 the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) 2 (emphasis added; citations and quotation marks omitted). On the other hand, if the 3 petitioner has no such potentially viable arguments, then the claim indeed is technically 4 exhausted; but it is also subject to immediate dismissal with prejudice as procedurally 5 defaulted. 6 Ineffective assistance of counsel claims present a different situation in this context. 7 Elliott argues that he can show cause and prejudice and that the default of grounds 5(B), 8 6 and 10 should be excused under Martinez v. Ryan, 566 U.S. 1 (2012), because he 9 received ineffective assistance of state postconviction counsel (ECF No. 95 at 5-10). 10 The Court in Coleman held that ineffective assistance of counsel in postconviction 11 proceedings does not establish cause for the procedural default of a claim. See Coleman, 12 501 U.S. at 750. In Martinez, the Court established a “narrow exception” to that rule. The 13 Court explained that,

14 Where, under state law, claims of ineffective assistance of trial 15 counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a 16 substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding 17 was ineffective. 18 566 U.S. at 17. The Ninth Circuit has provided guidelines for applying Martinez, 19 summarizing the analysis as follows:

20 To demonstrate cause and prejudice sufficient to excuse the 21 procedural default, therefore, Martinez . . . require[s] that Clabourne make two showings. First, to establish “cause,” he must establish that his counsel 22 in the state postconviction proceeding was ineffective under the standards of Strickland [v. Washington, 466 U.S. 668 (1984)]. Strickland, in turn, 23 requires him to establish that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, 24 absent the deficient performance, the result of the post-conviction proceedings would have been different. Second, to establish “prejudice,” he 25 must establish that his “underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must 26 demonstrate that the claim has some merit.” 1 Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014) (citations omitted). Applying such 2 guidelines here compels dismissal of one ground. 3 First, ground 5(B)—the claim that the sentencing judge had an “intolerable risk” of 4 bias against Elliott—is a substantive claim. (ECF No. 49 at 31-34.) A Martinez analysis 5 may only be invoked when the underlying claim is one of ineffective assistance of trial 6 counsel. Accordingly, ground 5(B) is dismissed as procedurally barred. 7 Next, grounds 6 and 10 are claims of trial IAC (trial IAC for failing to ask Judge 8 Kosach to recuse himself and trial IAC for failure to challenge the alleged duplicate 9 robbery charges) (ECF No. 49 at 34-35, 39-40). The Martinez analysis with respect to 10 these claims is intertwined, to a large extent, with the analysis of the underlying merits of 11 the claims. Elliott will need to demonstrate that postconviction counsel was ineffective 12 under Strickland v. Washington and that these IAC claims are substantial. As such, the 13 Court will defer ruling on the Martinez issue to the merits disposition of Elliott’s petition. 14 B. Grounds 1, 2, 3, 4, 5(A), 7 and 11 15 Respondents argue that Elliott never presented grounds 1, 2, 3, 4, 5(A), 7 and 11 16 to the Nevada Supreme Court. (ECF No. 60 at 9-10.) 17 The particulars of these grounds are as follows. In ground 1, Elliott argues that Van 18 Ry represented him notwithstanding an actual conflict of interest because his firm, the 19 Jack Alian Conflict Group, had a financial disincentive to incur the expense of 20 investigators or experts. (ECF No. 49 at 21-23.) In ground 2, Elliott alleges that he and 21 Van Ry had a complete breakdown of the attorney-client relationship, in violation of his 22 Fifth, Sixth and Fourteenth Amendment rights. (Id. at 24-26.) Ground 3 states that the trial 23 court’s refusal to let him represent himself violated his Sixth and Fourteenth Amendment 24 rights. (Id. at 26-27.) Ground 4 asserts that Van Ry was ineffective for failing to introduce 25 exculpatory evidence, namely, alibi witnesses and evidence that Elliott had a job and 26 other sources of financial support, and for failing to seek DNA testing of cigarette butts 1 Judge Kosach had an intolerable risk of bias against him and in particular was unable to 2 objectively evaluate Van Ry’s performance. (Id. at 31-33.) Ground 7 alleges IAC in 3 violation of his Sixth and Fourteenth Amendment rights for Van Ry’s failure to file a motion 4 to suppress the BB gun. (Id. at 36-37.) Ground 11 contends that Van Ry represented him 5 on direct appeal despite a conflict of interest, a breakdown in the attorney-client 6 relationship, and having withdrawn as counsel, in violation of his Sixth and Fourteenth 7 Amendment rights. (Id. at 40-41.) 8 Elliott presented all of these grounds to the state district court in his pro se state 9 postconviction petition and supplement. (Exhs. 61, 71.) On appeal from the denial of the 10 petition, Elliott, through counsel, raised two claims: (1) that the State violated Brady v. 11 Maryland by failing to provide Elliott with an investigative memo that showed that the State 12 had previously located two potentially exculpatory witnesses; and (2) that the district court 13 abused its discretion when it denied a continuance of the evidentiary hearing when the 14 State presented the investigative memo. (Exh. 94 at 5-10.) Elliott did not present the 15 above grounds 1, 2, 3, 4, 5(A), 7 and 11 to the Nevada Supreme Court on appeal. (See 16 Exhs. 53, 87.) They are, therefore, unexhausted. 17 However, Elliott argues that this court should view grounds 1, 2, 3, 4, 5(A), 7 and 18 11 as exhausted—and points to Clemmons v. Delo, 124 F.3d 944, 947 (8th Cir. 1997) to 19 support his position. In Clemmons, the petitioner, through counsel, presented a Brady 20 claim among other claims in his state postconviction petition. See 124 F.3d 944, 947 (8th 21 Cir. 1997). The petitioner’s lawyer failed to present the issue on appeal, despite repeated 22 instructions from petitioner to do so. The petitioner then attempted to file a pro se 23 supplemental brief with the state supreme court, but the court denied him leave to file the 24 brief. That Eighth Circuit Court of Appeals concluded that the petitioner had fairly 25 presented his Brady claim to the highest state court. The court reasoned that the situation 26 went beyond an omission by counsel. The petitioner had written to counsel, requested to 1 highest court in order that they would be preserved for review. In declining to do so, his 2 counsel explained that he had presented every argument that he felt could be supported 3 by law and evidence. The petitioner then moved the state supreme court for leave to file 4 a supplemental brief pro se, which the court denied without comment. The Eighth Circuit 5 concluded that the petitioner did everything he could do to bring the Brady issue to the 6 state supreme court and that in that instance the claim was fairly presented and therefore 7 exhausted. 8 Here, Elliott apparently wrote several letters to his state postconviction counsel, 9 Mary Lou Wilson, about the appeal of his state petition. (Pet. Exhs. 42-46.) In an April 12, 10 2010 letter he stated that he wished to appeal the denial of the petition and requested 11 that counsel send him the State’s investigative memo and a transcript of the evidentiary 12 hearing. (Pet. Exh. 42.) He also asked that counsel meet with him before filing the fast 13 track statement to discuss what issues would be raised. (Id.) Elliott wrote a letter on April 14 27, 2010, thanking counsel for sending the requested documents. (Pet. Exh. 43.) He 15 reiterated that he wanted to meet with counsel before his appeal was filed, emphasized 16 that “this is not negotiable,” and directed that if counsel could not meet with petitioner then 17 he would proceed pro se. The only issue he referenced specifically was the alibi 18 witnesses. (Id.) In a June 28, 2010 letter Elliott urged that he would not sign off on the 19 appeal until he reviewed it and stated that he would contact the Nevada Supreme Court 20 to preserve his issues on appeal. (Pet. Exh. 44.) Again the only issue he identified 21 specifically in that letter is the alibi witnesses. (Id.) Elliott apparently wrote again on July 22 8, 2010 stating: “I am waiting still for your response to a meeting requested BEFORE you 23 file anything . . . again please send info on alibi witnesses!” (Pet. Exh. 45.) He does not 24 provide any proof of mailing that letter.4 25

26 4The letters found at Pet. Exhs. 42-44 all include postmarked envelopes. The letters found at Pet. Exhs. 45 and 46 do not have postmarked envelopes or anything else 1 The record reflects that Wilson filed a fast track statement on appeal on July 26, 2 2010. (Exh. 94.) Elliott provides a copy of a letter purportedly written on July 30, 2010, in 3 which he complains that Wilson only challenged one ground on appeal when Elliott 4 wanted her to raise all grounds on appeal. (Pet. Exh. 46.) He directed Wilson to withdraw 5 immediately. He indicated that he was sending a copy of the letter to the Nevada Supreme 6 Court with a request to supplement the fast track statement and a request for new 7 counsel. Elliott sent a letter to the Nevada Supreme Court, which was filed in his appeal 8 of the state postconviction petition. See Nevada Supreme Court Case No. 56302. In that 9 letter, Elliott stated that he wished to supplement his fast track statement and raise all 10 grounds denied by the state district court. He also stated that he had terminated Wilson’s 11 representation. The Nevada Supreme Court directed that the letter be filed but denied 12 Elliott’s motion for leave to file proper person documents. The court stated that it was 13 counsel’s responsibility to identify issues for appeal and noted that Elliott could not fire 14 appointed counsel. (See id.) 15 Respondents argue that Elliott did not exhaust any grounds from his state 16 postconviction petition except for the two purported Brady claims because none of the 17 other claims were presented “within the four corners of his appellate briefing.” Castillo v. 18 McFadden, 399 F.3d 993, 1000 (9th Cir. 2005); see Baldwin v. Reese, 541 U.S. 27, 32 19 (2004). Respondents point out that the Nevada Supreme Court accepted Elliott’s letter, 20 considered his request to file supplemental briefing and denied it, concluding that counsel 21 was responsible for prosecuting the appeal. (ECF No. 73 (citing Nevada Supreme Court 22 Case No. 56302, order dated September 13, 2010).) Thus, they argue that the letter was 23 legally insufficient to exhaust any claims. Respondents further argue that even if the letter 24 was considered a sufficient manner of presenting the claims, Elliot failed to identify any 25 facts related to his claims. They contend that bare references to claims raised in state 26 district court, with no factual support, cannot serve to exhaust the claims. (See id.) 1 Respondents also distinguish Clemmons on two bases. First, in contrast to the 2 bare assertions in Elliott’s letter, the Clemmons petitioner identified 130 claims and 3 identified specific documents that he wanted to provide as supplemental briefing. Second, 4 the Missouri Supreme Court simply denied the motion for supplemental briefing without 5 comment; the Eighth Circuit explained that the Missouri Supreme Court had no rule 6 specifying the circumstances in which the court allowed pro se briefs. See Clemmons, 7 124 F.3d at 948 n.3. But the Nevada Supreme Court specifically invoked NRAP 46(b) 8 (now NRAP 46A: “A party who is represented by counsel shall proceed through counsel 9 and is not permitted to file written briefs or other papers, in pro se . . . .”). Respondents 10 finally note that Elliott does not have a right to both assistance of counsel and acceptance 11 of his own proper person filings. (ECF No. 73 (citing U.S. v. Bergman, 813 F.2d 1027, 12 1030 (9th Cir. 1987).) 13 The Court concludes that Elliott did not fairly present grounds 1, 2, 3, 4, 5(A), 7 14 and 11 to the Nevada Supreme Court. 15 Elliott argues alternatively that this Court should treat these grounds as technically 16 exhausted/procedurally defaulted. (ECF No. 66 at 16-21.) He asserts that he can 17 demonstrate good cause and actual prejudice to overcome the procedural default 18 because his postconviction counsel abandoned him. 19 Elliott points to Maples v. Thomas, 565 U.S. 266, 281 (2012), and Towery v. Ryan, 20 673 F.3d 933 (9th Cir. 2012) to support his argument that attorney abandonment can give 21 rise to good cause. In Maples, two lawyers from a large New York law firm represented 22 petitioner in his state postconviction petition in Alabama. See Maples, 565 U.S. at 270. 23 While his petition was pending in state court, the lawyers left the firm, and their new 24 employment disabled them from representing Maples. They did not inform Maples or the 25 court. Maples was not informed when his petition was denied and, with no representation, 26 the time to appeal ran out. The federal district and appellate courts rejected his federal 1 had demonstrated “ample cause,” reasoning that when Maples missed the deadline to 2 appeal, he had no attorney serving as his agent “in any meaningful sense of the word.” 3 Id. at 288. 4 Elliott urges that, as in Maples, the Court may excuse a procedural default if the 5 petitioner’s “attorney abandons his client without notice, and thereby occasions the 6 default.” See 565 U.S. at 281. While mere “negligence” on the part of an attorney might 7 not give rise to cause (id. at 282), “more serious instances of attorney conduct” may 8 qualify (Holland v. Florida, 560 U.S. 631, 652 (2010); see also Maples, 565 U.S. at 280- 9 83 & n.7). For example, if the attorney’s misconduct “sever[s] the principal agent 10 relationship,” and the attorney is “no longer act[ing] . . . as the client’s representative,” a 11 petitioner may be able to establish cause. Maples, 565 U.S. at 281. 12 Elliott argues that Wilson “performed incompetent legal work” for him throughout 13 her representation. See Towery v. Ryan, 673 F.3d 933, 944 (9th Cir. 2012). The Court 14 agrees that the state-court record and Elliott’s letters reflect that Wilson “failed to 15 communicate with” Elliott and “refused to implement his reasonable requests.” Id. Elliott 16 points out that Wilson failed to move in advance for a continuance for the evidentiary 17 hearing on the state postconviction petition even though she had not yet located the alibi 18 witnesses. She waited until the hearing, the State objected that she did not timely move 19 for a continuance, and the court denied the continuance. (Exh. 84.) After that hearing, 20 Elliott wrote repeatedly to Wilson, insisting that they discuss the issues to be raised on 21 appeal before she filed the fast track statement. (Pet. Exhs. 42-46.) He stated that as he 22 understood the state-court rules, Wilson was required to file the notice of appeal, but then 23 he wanted her to withdraw after. He emphasized that if Wilson did not go over the issues 24 with him prior to filing the appeal that he wanted her to withdraw so that he could proceed 25 pro se. It does not appear that Wilson responded in any way except for sending Elliott the 26 transcript and investigative memo that he requested. When Wilson filed the appeal 1 Supreme Court that he wished to raise additional claims. He was then trapped by the fact 2 that he had appointed counsel; the Nevada Supreme Court invoked the appellate rule 3 that a party represented by counsel is not permitted to file anything in pro se even though 4 Elliott had stated in his letter to the court that he had terminated Wilson. 5 In this particular circumstance, the Court concludes that Elliott has demonstrated 6 good cause as to the procedural default of grounds 1, 2, 3, 4, 5(A), 7 and 11. While Elliott 7 asserts that he has also demonstrated prejudice because each of these grounds is a 8 winning claim, the Court will defer a determination on prejudice to the merits review of 9 Elliott’s remaining claims. 10 C. Grounds 8 and 9 11 In their reply, Respondents acknowledge that upon further review of Elliott’s direct 12 appeal, grounds 8 and 9 are exhausted. (ECF No. 73 at 7.) The Court agrees. The Court 13 will thus decline to dismiss these grounds. 14 D. CONCLUSION 15 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 60) is granted 16 in part as follows: (1) ground 5(B) is dismissed as procedurally barred; (2) a decision on 17 grounds 1, 2, 3, 4, 5(A), 6, 7, 10 and 11 is deferred; and (3) grounds 8 and 9 are 18 exhausted. 19 It is further ordered that Respondents will have 60 days from the date this order is 20 entered within which to file an answer to the remaining claims in the first-amended 21 petition. 22 It is further ordered that Petitioner will have 45 days following service of 23 Respondents’ answer in which to file a reply. 24 /// 25 /// 26 /// 1 It is further ordered that Respondents’ motion for extension of time to file a reply in 2 support of the motion to dismiss (ECF No. 72) is granted nunc pro tunc. 3 DATED THIS 22nd day of August 2019.

6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26