Estes v. Johnson

Opinion

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MICHAEL ESTES, Case No. 3:21-cv-00338-MMD-CSD

Plaintiffs, ORDER v. CALVIN JOHNSON,1 et al., Defendants. Pro se petitioner Michael Estes, an individual incarcerated at High Desert State Prison, initiated a habeas corpus action under 28 U.S.C. § 2254 (“Petition”). Before the Court is Respondents’ Motion to Dismiss the Petition (ECF No. 13 (“Motion to Dismiss”)) and Motion for Leave to File Exhibit Under Seal (ECF No. 17). Estes did not file an opposition to either motion. For the reasons discussed below, the Motion for Leave to File Exhibit Under Seal will be granted and the Motion to Dismiss will be granted in part and denied in part. In his Petition, Estes challenges his convictions and sentences, under a plea agreement, imposed by the Eight Judicial District Court for Clark County, Nevada, for charges stemming from domestic violence. (ECF Nos. 7, 16-6 at 4–7.) A. Guilty Plea A 2016 information charged Estes with three counts: (1) attempted murder; (2)

1According to the Nevada Department of Corrections (“NDOC”) inmate locator page, Estes is incarcerated at High Desert State Prison. The NDOC website reflects Calvin Johnson is the warden of that facility. See State of Nevada Department of Corrections, High Desert State Prison (last visited Oct. 28, 2022), https://doc.nv.gov/Facilities/HDSP Faciltiy/. The Court therefore directs the Clerk of Court to substitute Calvin Johnson for Respondent Warden William Gittere under Federal mayhem. (ECF No. 14-13.) At calendar call on April 16, 2018, the parties filed a guilty plea agreement (“Agreement”), in which Estes consented to plead guilty to all three charges. (ECF Nos. 15-5, 15-6 at 3.) According to the Agreement, the parties stipulated that Estes would be sentenced as a large habitual criminal, and that they would jointly recommend concurrent sentences of 10 to 25 years for Counts 2 and 3. (ECF No. 15-5 at 2–3.) The parties each retained the right to argue for an appropriate sentence for Count 1. (Id.) The consequences of pleading guilty, including the minimum and maximum sentencing possibilities for each count, are set forth in the Agreement. (Id. at 3–4.) During Estes’s change of plea colloquy, Estes confirmed he was 34 years old, had graduated from school, could read and write English, and that he had read, understood, and signed the Agreement. (ECF No. 15-6 at 4–5, 9.) However, while the state district court summarized the sentencing terms of the Agreement, Estes indicated he did not understand the Agreement: THE COURT: Have you had an opportunity to review the Information in this case, which charges you with 1 count of attempt murder, a B felony, 1 count of battery resulting in substantial bodily harm constituting domestic violence, a C felony, and a count of mayhem, a B felony? THE DEFENDANT: Yes, ma’am. THE COURT: Have you read those charges? THE DEFENDANT: Yes, ma’am. THE COURT: Do you understand them? THE DEFENDANT: Yes, ma’am. THE COURT: Do you need me to read them out loud to you again in open court?

THE DEFENDANT: So count 2 and count 3 are gonna be ran concurrent with the habitual criminal ten to twenty-five? THE COURT: They’re concurrent to each other, ten to twenty-five on each is the negotiation but consecutive to count 1.

THE DEFENDANT: So, I don’t understand. Agreement, including the minimum and maximum terms of imprisonment and concurrent versus consecutive sentence possibilities for each count, and the state attorney explained that “the most time he’s facing is eighteen to forty-five years,” and “the least amount of time he’ll be facing is twelve to thirty years” (Id. at 5–8.) At that point, Estes stated, “I understand what he’s saying now,” confirmed he wished to proceed, and entered guilty pleas in conformity with the Agreement. (Id. at 8–13.) The state district court accepted the guilty pleas, finding they were freely and voluntarily made, and that Estes had understood the nature of the offenses and the consequences of the pleas. (Id. at 13–14.) B. Motion to Withdraw the Guilty Plea Before sentencing, Estes filed a motion to withdraw his guilty pleas. (ECF No. 15- 12). He contended: (1) there was a lack of communication with counsel; (2) he did not speak with counsel regarding the plea negotiation until the calendar call on the morning that he changed his plea; (3) he “felt rushed to make a decision as to the plea agreement” and “did not have sufficient time to make an intelligent decision as to the plea agreement”; and (4) he was not provided a copy of discovery. (Id. at 2, 5.) Trial counsel testified at an evidentiary hearing on the motion to withdraw the guilty pleas that he and Estes had “continuously discussed negotiations from very early on” in their engagement and discussed the strengths and weaknesses of the case as well as the ability to defend it “[f]rom the beginning.” (ECF No. 15-16 at 7, 21.) Counsel did not recall how many times he had spoken with Estes and admitted they had had difficulty communicating after Estes had moved from local detention to prison for another matter. (Id. at 7, 15–16.) Counsel did not recall seeing Estes at the prison, but said they had spoken on the telephone. (Id. at 15, 36.) Counsel said he and Estes had had “good communication” “face to face,” even though counsel felt their communications had not always been crystal clear. (Id. at 8–9.) Counsel testified that he had “had a range of what would be acceptable” to Estes, including minimum parole eligibility and maximum imprisonment time, and that the 34.) Counsel stated the initial deadline for acceptance of the Agreement was April 11, 2018, and that he had spoken with Estes before that deadline about the overall picture but had not gone into the details. (Id. at 13, 24–25.) Counsel said he had indicated to the state attorney that Estes was interested in accepting the Agreement, and the state had agreed to extend the Agreement deadline to the April 16, 2018 calendar call because the parties did not believe the case could be placed on the court calendar before that date. (Id. at 13–14.) Counsel testified that Estes had first seen the written Agreement on the date of the calendar call when Estes had entered his guilty pleas. (Id. at 14.) Counsel stated they had gone over the terms of the written Agreement, but “it was confusing” because the Agreement discussed the charges in reverse order, and counsel claimed Estes had helped him understand the Agreement. (Id. at 31–33.) Counsel said Estes had wanted more time to consider the Agreement, but counsel had informed Estes that the offer would expire on April 16, 2018, if not accepted that day. (Id. at 25–26.) Counsel had told Estes that if the offer was not accepted, “there would be no choice” but to go to trial. (Id. at 27- 28.) However, counsel had also told Estes he thought he could obtain a short extension of time for trial. (Id. at 28–29.) Counsel said he had asked the state attorney to state the terms of the Agreement on the record during the change of plea hearing to ensure a clear statement of the Agreement’s terms. (Id. at 9.) Estes testified at the evidentiary hearing on the motion to withdraw his guilty pleas that he had been to prison on three separate occasions for convictions entered under plea deals but, unlike the Agreement in this case, he had understood those prior plea deals. (Id. at 47–48.) Estes said he had only met with counsel “[o]ne time” at the Clark County Detention Center and had spoken to counsel “[m]aybe three times” on the telephone. (Id. at 35–36.) Estes admitted he had spoken with counsel each time they attended court, including at the January evidentiary hearing concerning the admission of prior acts evidence for Estes’s anticipated trial, where they also discussed plea the Agreement before the calendar call and said he had not known the terms of the plea offer before that time. (Id. at 36, 39.) Estes said counsel had told him that if he didn’t take the deal, the judge would likely deny a continuance because the case had been underway for two years, during which the parties had many continuances. (Id. at 38.) Estes said he had told counsel at the January evidentiary hearing that he would have accepted “8 to 20 and 2 to 10” and testified that this was what he had expected at the April calendar call. (Id. at 53–54.) Estes had believed the plea offer was for a sentence of “10-to-25 with 2-to-20 concurrent with the 10-to-25,” that he had had difficulty understanding the Agreement as written, that he had not known the sentences would be consecutive, and that the ultimate plea offer was not within the range that he had told counsel was acceptable to him. (Id. at 36–38, 41.) Estes testified that he had admitted to the state district court that he had understood the Agreement because counsel had explained that if he lost at trial, he could get a life sentence, and he did not “want to end up . . . in prison for the rest of his life for beating someone up.” (Id. at 48, 55.) Recordings of Estes’s jail calls to his brother were admitted into evidence, in which Estes allegedly told his brother that others at the prison had told him the Agreement required too many years of imprisonment. (Id. at 43–44, 57–59.) The state district court listened to the jail calls and denied the motion to withdraw the guilty pleas. (ECF No. 15- 17 at 3, 11–14.) The state district court subsequently sentenced Estes to an aggregate term of imprisonment for 18 to 45 years. (ECF No. 15-18 at 3.) C. Postconviction Proceedings Estes did not directly appeal his convictions. (ECF No. 15-20 at 4.) Estes filed a pro se state postconviction petition. (Id.) The state district court denied Estes’s petition. (ECF No. 16-6.) Estes appealed, and the Nevada Court of Appeals affirmed. (ECF No. 16-19.) Estes initiated this federal habeas corpus proceeding pro se on August 4, 2021, raising three grounds for relief. (ECF No. 7.) A. Motion for Leave to File Exhibit Under Seal (ECF No. 17) Respondents seek leave to file under seal one document in support of their Motion to Dismiss Estes’s Petition: Exhibit 27, Petitioner’s Presentence Investigation Report (ECF No. 19 (“Exhibit 27” or “PSI”)), dated May 18, 2018. (ECF No. 17.) Under Nevada law, the PSI is “confidential and must not be made a part of any public record.” NRS § 176.156(5). Having reviewed and considered the matter in accordance with Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and its progeny, the Court finds that a compelling need to protect Estes’s safety, privacy, and/or personal identifying information outweighs the public interest in open access to court records. Accordingly, the Motion for Leave to File Exhibit Under Seal (ECF No. 17) is granted, and Exhibit 27 (ECF No. 19) is considered properly filed under seal. B. Motion to Dismiss (ECF No. 13) Respondents filed a Motion to Dismiss, claiming all three grounds of the Petition are unexhausted. (ECF No. 13.) 1. Legal Standard—Exhaustion A petitioner must exhaust state court remedies for a federal habeas corpus claim before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement ensures the state courts, as a matter of comity, will have the first opportunity to address and correct alleged violations of federal constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). “A petitioner has exhausted his [or her] federal claims when he [or she] has fully and fairly presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999)). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief. See Scott v. Schriro, 567 F.3d 573, 582–83 (9th Cir. 2009) (citing Picard v. Connor, 404 U.S. 270, 278 (1971)). To satisfy the exhaustion requirement, a claim must have been raised level of review available in state court. O'Sullivan, 526 U.S. at 844–45. “In the exhaustion context, the Supreme Court has admonished lower courts that the complete exhaustion requirement is not intended to ‘trap the unwary pro se prisoner’.” Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (quoting Slack v. McDaniel, 529 U.S. 473, 487 (2000)). “More generally, the Court has held pro se pleadings to a less stringent standard than briefs by counsel and reads pro se pleadings generously, ‘however inartfully pleaded’.” Davis, 511 F.3d at 1009 n.4 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)); see also Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) (noting pro se petitions are held to a “more lenient standard than counseled petitions”). A petitioner may reformulate his claims so long as the substance of his argument remains the same. See Picard, 404 U.S. at 277–78 (“Obviously there are instances in which the ultimate question for disposition will be the same despite variations in the legal theory or factual allegations urged in its support.”) (internal citations and quotation marks omitted). Thus, a petitioner may provide additional facts in support of a claim to the federal habeas court so long as those facts do not fundamentally alter the legal claim that was presented to the state courts. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (holding that supplemental evidence did not fundamentally alter the legal claim considered by the state courts); Weaver v. Thompson, 197 F.3d 359, 364–65 (9th Cir. 1999) (holding that facts adduced at an evidentiary hearing did not change the factual basis of a claim). A claim is unexhausted, however, if additional alleged facts place the claim in a significantly different and stronger evidentiary posture than the claim that was presented to the state courts. See Dickens v. Ryan, 740 F.3d 1302, 1318–19 (9th Cir. 2014). “[T]his rule allows a petitioner who presented a particular [ineffective assistance of counsel] claim, for example, that counsel was ineffective in presenting humanizing testimony at sentencing, to develop additional facts supporting that particular claim.” Poyson v. Ryan, (9th Cir. 2005)). However, “[i]t does not mean . . . that a petitioner who presented an ineffective assistance of counsel claim below can later add unrelated alleged instances of counsel’s ineffectiveness to his claim.” Id. 2. Legal Standard—Procedural Default and Martinez Where a petitioner “has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule,” federal habeas corpus review “is barred unless the prisoner can 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 claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. To demonstrate cause, the petitioner must establish that some external and objective factor impeded efforts to comply with the state’s procedural rule. See, e.g., Maples v. Thomas, 565 U.S. 266, 280, 289 (2012) (finding cause to excuse procedural default due to attorney abandonment but remanding for a determination of prejudice); McCleskey v. Zant, 499 U.S. 467, 497 (1991) (holding that, for cause to exist, the external impediment must have prevented the petitioner from raising the claim). “[T]o establish prejudice, [a petitioner] must show not merely a substantial federal claim, such that ‘the errors . . . at trial created a possibility of prejudice,’ but rather that the constitutional violation ‘worked to his actual and substantial disadvantage.’” Shinn v. Ramirez, 142 S. Ct. 1718, 1732 (2022) (citing Murray v. Carrier, 477 U.S. 478, 494 (1986), and quoting United States v. Frady, 456 U.S. 152, 170 (1982)). With one exception, Nevada’s cause and prejudice standards are functionally identical to the federal standards for cause and prejudice. See Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2004); Mitchell v. State, 122 P.3d 33, 36 (Nev. 2006). That exception is for a procedurally defaulted claim of ineffective assistance of trial counsel when the cause for the default is the ineffective assistance or absence of postconviction counsel in the initial postconviction proceedings in accordance with Martinez v. Ryan, 566 U.S. 1 (2012). The Nevada Supreme Court does not recognize Martinez as authority for P.3d 867, 870–74 (Nev. 2014). Thus, a Nevada federal habeas petitioner who relies on Martinez—and only Martinez—as a basis for overcoming a state procedural bar can successfully argue that the state courts would hold the claim procedurally barred, but that he nonetheless has a potentially viable argument for cause and prejudice under federal law. Cause to excuse a procedural default of an ineffective assistance of trial counsel claim under Martinez exists where (1) the claim of “ineffective assistance of trial counsel” was “substantial”; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding for the “ineffective-assistance-of- trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.” Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 18–19)). A claim is “substantial,” if it has “some merit.” Martinez, 566 U.S. at 14. A claim is “insubstantial” if “it does not have any merit or . . . is wholly without factual support.” Id. at 16. 3. Ground 12 In Ground 1, Estes alleges trial counsel was ineffective in advising him of the consequences of the Agreement because (A) counsel failed to visit him at the jail to thoroughly explain the Agreement to him and instead presented it to him in court at calendar call while Estes was shackled to another prisoner, giving him 10 minutes to decide whether to accept the plea or proceed to trial; and (B) Estes has a substantial mental health history. (ECF No. 7 at 3.) Estes claims counsel’s ineffective assistance resulted in Estes’s failure to comprehend the Agreement and, but for counsel’s ineffective assistance, Estes would not have accepted the Agreement and would have instead gone to trial. (Id.) 2 to support his ineffective assistance of counsel claim that do not correspond with the facts presented in Estes’s postconviction habeas appeal and because those new facts challenge the conditions surrounding Estes’s plea rather than his ability to understand the Agreement. (ECF No. 13 at 4.) Respondents further contend that Estes’s claim that counsel was ineffective due to Estes’s “substantial mental health history” is conclusory and unexhausted. (Id. at n.2.) As discussed below, the Court determines Ground 1 is partially exhausted and partially technically exhausted but procedurally defaulted, subject to Estes’s ability to overcome the default under Martinez. a. Ground 1(A) The Court is persuaded that Estes fairly presented his claim that trial counsel was ineffective in failing to adequately advise Estes about the consequences of the Agreement because the state appellate court considered the claim. On appeal from the denial of the state postconviction habeas petition, the Nevada Court of Appeals noted “Estes appeared to argue his counsel was ineffective for advising him to enter a guilty plea even though Estes was not able to understand the plea agreement and the consequences thereof.” (ECF No. 16-19 at 2–3.) The Nevada Court of Appeals analyzed the claim but held that Estes failed to demonstrate counsel’s performance had fallen below an objective standard of reasonableness or a reasonable probability he would have refused to plead guilty and would have insisted on proceeding to trial had counsel discussed the Agreement in a different manner. (Id.) A state appellate court decision on the merits of a claim of course exhausts the claim. See Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir. 2015). Respondents are correct that Estes’s factual allegation that counsel presented the Agreement to him while Estes was shackled to another prisoner with only 10 minutes to consider it was not alleged in the state habeas appeal. (ECF No. 16-14.) However, the fact that Estes was first presented with the written Agreement in court, shortly before the hearing when he changed his plea, is part of the state court record. (See ECF No. 15-6 claim in a significantly different and stronger evidentiary posture than the claim presented to the state courts, do not contradict the evidence the state court already considered, and are not instances of ineffective assistance that are unrelated to Estes’s claim.3 Because the claim in Ground 1(A) was, and still remains, a claim that counsel’s failure to properly advise Estes led to Estes’s failure to understand the Agreement and resulting prejudice, the Court concludes the claim in Ground 1(A) is exhausted. b. Ground 1(B) The Court liberally construes Ground 1 of the pro se Petition to include a claim that counsel was ineffective in advising Estes concerning the consequences of the Agreement due to Estes’s mental health history. (ECF No. 7 at 3.) The Nevada Court of Appeals declined to consider Estes’s ineffective assistance of counsel claims based on Estes’s state of mind, mental health, and competency, because those claims were not previously raised in the state district court. (ECF No. 16-19 at 4 (citing McNelton v. State, 990 P.2d 1263, 1275-76 (Nev. 1999).) Thus, the Court finds the claim in ground 1(B) is procedurally defaulted. Respondents contend the Court should dismiss any claims in Ground 1 that are procedurally defaulted. (ECF No. 13 at 5, n.3.) However, if Estes can show good cause and prejudice, then the Court can excuse operation of the procedural default for the claim in Ground 1(B). Estes did not file an opposition to the Motion to Dismiss and does not otherwise assert Martinez as a basis to overcome his procedural default of the claim in Ground 1(B). However, Estes alleges trial counsel was ineffective, and the state court record shows Estes was not represented for his state postconviction proceedings and the factual basis concerning the claim is not wholly frivolous or without any factual basis.

3This is not to say the Court will consider evidence supporting the newly alleged facts if such evidence is not part of the state court record in existence at the time the state courts considered the claim. See Shinn v. Ramirez, 142 S. Ct. 1718, 1735 (2022) (“[Under § 2254(e)(2) . . . a federal court may order an evidentiary hearing or otherwise expand the state-court record only if the prisoner can satisfy § 2254(e)(2)’s stringent default of the claim in Ground 1(B) until the merits of Ground 1 are fully briefed. 4. Grounds 2 and 3 Grounds 2 and 3 allege trial counsel’s unconstitutional ineffective assistance led Estes to accept the Agreement which, in turn, resulted in cruel and unusual punishment in violation of the Eighth Amendment. (ECF No. 7 at 5, 7.) Grounds 2 and 3 additionally allege trial counsel’s ineffectiveness in failing to visit Estes at the jail to go over the Agreement and instead presenting the Agreement at calendar call was fundamentally unfair because it forced Estes to make an uninformed, rushed decision in a courtroom with no privacy and a nonexistent attorney-client privilege. (Id.) Grounds 2 and 3 are unexhausted to the extent they raise Eighth Amendment claims as such claims were never fairly presented to the Nevada Court of Appeals in the postconviction appeal. (ECF Nos. 16-14, 16-19.) In his postconviction habeas appeal, Estes contended that the state district court violated his constitutional rights when it sentenced him as a habitual criminal because the Nevada habitual criminal statute violates federal due process under the Fifth, Sixth, and Fourteenth Amendments. (Id.) Estes’s postconviction habeas appeal did not allege an Eighth Amendment violation for cruel and unusual punishment. (Id.) Estes’s allegations in Grounds 2 and 3 of ineffective assistance of counsel in advising Estes about the consequences of the Agreement duplicate the claims in Ground 1(A). Thus, Grounds 2 and 3 are partially unexhausted and partially duplicative of Ground 1(A). A federal court may not entertain a habeas petition unless the petitioner has exhausted all available and adequate state court remedies for all claims in the petition. See Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed petition” containing both exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the Court finds Grounds 2 and 3 are unexhausted to the extent Estes claims his sentence is cruel and unusual in violation of the Eighth Amendment. seeking partial dismissal of only the unexhausted claims; (2) file a motion to dismiss the entire Petition without prejudice in order to return to state court to exhaust the unexhausted claims; or (3) file a motion for other appropriate relief, such as a motion for a stay and abeyance, asking this Court to hold his exhausted claims in abeyance while he returns to state court to exhaust the unexhausted claims. It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 13) is granted in part and denied in part. The Motion is denied as to Ground 1 in the Petition as set forth in this order. The Court defers its decision as to whether Estes can establish cause and prejudice to overcome the default of the portion of Ground 1 that is procedurally defaulted without prejudice to Respondents’ reassertion of defenses in their answer. The Motion is granted as to Grounds 2 and 3 in the Petition. It is further ordered that by December 1, 2022, Estes must either: (a) file a motion to dismiss seeking dismissal of Grounds 2 and 3; (b) file a motion to dismiss the entire Petition without prejudice in order to return to state court to exhaust Grounds 2 and 3; or (c) file a motion for other appropriate relief, such as a motion for a stay and abeyance, asking this Court to hold his exhausted claims in abeyance while he returns to state court to exhaust Grounds 2 and 3. It is further ordered that failure to timely comply with this order will result in the dismissal of Estes’s mixed Petition without further advanced notice. /// /// /// /// /// /// /// 1 It is further ordered that Respondents’ Motion for Leave to File Documents Under Seal (ECF No. 17) is granted. It is further ordered that Exhibit 27 (ECF No. 19) is considered properly filed under seal. It is further ordered that the Clerk of the Court is directed to substitute Calvin Johnson for Respondent Warden William Gittere. DATED THIS 15 Day of November 2022.

MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 14