Feazell v. Baker

• Court: District Court, D. Nevada
• Decided: October 9, 2020
• Docket: 3:16-cv-00313
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DONEALE FEAZELL, Case No. 3:16-cv-00313-MMD-CLB

7 Petitioner, ORDER v. 8

9 RENEE BAKER, et al.,

10 Respondents.

12 This closed habeas matter is before the Court on Petitioner Doneale Feazell’s pro 13 se motion for relief from final judgment (“Motion”) (ECF No. 68). Respondents did not 14 respond to this Motion and the deadline to do so expired without request for extension. 15 For the reasons discussed below, Feazell’s Motion is denied. 16 I. BACKGROUND 17 Feazell initiated this federal habeas corpus proceeding pro se in June 2016, 18 challenging his state court conviction of one count of attempted robbery with the use of a 19 deadly weapon and one count of murder with the use of deadly weapon.1 (ECF No. 1.) 20 The Court appointed counsel and directed service of his pro se petition. (ECF Nos. 9, 23.) 21 A. The Dismissal Order 22 In September 2018, Feazell filed a counseled first amended petition (ECF No. 35). 23 Respondents moved to dismiss the amended petition as untimely, among other things. 24 (ECF No. 42.) Feazell did not dispute that his amended petition was untimely but asserted 25 an entitlement to equitable tolling based on his appellate counsel’s failure to keep him 26 apprised of the status of his case. (ECF No. 58.) 27 28 1The details of Feazell’s criminal conviction and state post-conviction proceedings 2 abandoned him relied on unsupported allegations and speculation. (ECF No. 63 at 5.) 3 Additionally, the Court determined that Feazell “utterly failed to show that he was diligent”: 4 Petitioner does not even argue, much less attempt to prove, that he 5 attempted to discern the status of his case or to have counsel file a state petition on his behalf much earlier than was done while any extraordinary 6 impediment stood in his way. On this basis alone, Petitioner’s claim of equitable tolling fails. 7 (Id.) 8 Although he failed to adequately raise or support this argument, in an abundance 9 of caution, the Court also addressed Feazell’s contention that he is factually innocent: 10 Review of the record in state court indicates that Petitioner asserted a claim of actual innocence based on an alibi—five family members who would 11 have testified that Petitioner was at his aunt, uncle and cousin’s house at the time of the event in question. To assess whether it is more likely than 12 not that no reasonable juror could have found Petitioner guilty beyond a reasonable doubt in light of this evidence, the Court must consider all the 13 other evidence that was presented at trial. At trial, undisputed evidence established that Derrick Hamilton had left a 14 party with his girlfriend Tira Miller at around 4:30 a.m. on December 19, 1992, when a van pulled up behind their car, blocking their exit. (ECF No. 15 43-28 (Ex. 28) at 49-50 (Tr. 45-46).) A person who was very light skinned walked up to Hamilton’s window, pointed a gun, said, “[T]his is a jack. Don’t 16 move,” and then shot Hamilton, who died a short time later. (Id. at 63-64 (Tr. 59-60).) Miller identified Petitioner as the shooter with certainty; she 17 stated she had seen [him] around a “couple . . . maybe four times,” in school or at the corner liquor store, although the estimated number of times ranged 18 from once to six or seven depending on when and to whom she gave a statement. (Id. at 66-68, 131, 135 (Tr. 62-64, 127, 131).) One witness who 19 both interacted with the shooter before the shooting and witnessed the shooting agreed that the shooter had very light skin but was unable to 20 identify Petitioner as the shooter. (ECF No. 43-26 (Ex. 26) at 93-94, 98 (Tr. 86-87, 91).) Another witness saw someone standing next to Hamilton’s car 21 window before the shooting and, while agreeing that the person had very light skin, testified that Petitioner was not that person. (ECF No. 43-30 (Ex. 22 30) at 99-100, 110, 123, 144 (Tr. 95-96, 106, 119, 140).) Evidence was also presented that Petitioner was co-owner of the van. He 23 and the other owner, Calvin Humphreys, had been given only one key and that key was in the possession of Humphreys. (ECF No. 43-26 (Ex. 26) at 24 152-53, 162-63 (Tr. 145-46, 155-56).) The van was taken from Humphrey’s house without his knowledge the evening before the murder. (Id. at 161-62 25 (Tr. 154-55).) At the time it was taken, the ignition was intact. (Id. at 175 (Tr. 168).) When the van was recovered after the shooting, the ignition had been 26 tampered with. (Id. at 156 (Tr. 149).) Although limited physical evidence was recovered from the victim and at the 27 scene, none of it tied Petitioner to the crime. Thus, the evidence against Petitioner amounted primarily to his matching the general physical 28 description of the shooter given by at least three people, being positively and being the co-owner of the van used to perpetrate the crime. 2 In his state postconviction proceedings, Petitioner asserted he was actually innocent based on the statements of five family members would have 3 testified that at the time of the murder—Petitioner had been at his aunt and uncle’s house, watching movies with his cousin. (See ECF No. 49-22 (Ex. 4 238) at 21-24; ECF No. 49-28 (Ex. 239F) at 134-38.) Considering this evidence in light of the other evidence at trial, the Court cannot conclude it 5 is more likely than not that no reasonable juror would have voted to convict Petitioner. Not only did Petitioner own the van used to perpetrate the crime, 6 he fit the general physical description of the shooter given by three unrelated persons and was identified “without question” as the shooter by 7 the person closest to the event, Tira Miller. (ECF No. 43-29 (Ex. 29) at 104 (Tr. 98).) While a defense witness disputed that Petitioner was the shooter, 8 there were certainly reasons given for the jury to discount his testimony, including the fact that he did not immediately tell the police anything about 9 his observations and only told anyone about his observations after both he and Petitioner had been in jail together, in the same module. In light of this 10 evidence, the Court cannot conclude that no reasonable juror would have voted to convict Petitioner in light of the alibi evidence, and thus Petitioner 11 has not established a gateway claim of actual innocence in order to avoid the time bar. 12 (Id. at 6-8.) Because Feazell’s original petition was untimely filed, and he failed to 13 establish a basis for equitable tolling or for avoidance of the time bar, the Court dismissed 14 the amended petition with prejudice as time-barred. (Id. at 9.) The Court further 15 considered and denied issuance of a certificate of appealability. (Id.) Judgment was 16 entered the same day as the dismissal order on July 17, 2019. (ECF No. 64.) 17 B. Application for Certificate of Appealability to the Ninth Circuit 18 On August 5, 2019, federal habeas counsel, David Neidert, filed a notice of appeal 19 with Court of Appeals for the Ninth Circuit. (ECF No. 65; see also Feazell v. Baker, Case 20 No. 19-165535.2) The following month, Neidert filed an application for certificate of 21 appealability asserting that this Court erred in dismissing Feazell’s case as untimely. The 22 Ninth Circuit denied a certificate of appealability on March 6, 2020. (ECF No. 67.) 23 /// 24 /// 25 /// 26

27 2This Court takes judicial notice of the proceedings in Feazell’s appeal before the Ninth Circuit. The docket records of the Ninth Circuit may be accessed by the public online 28 at: www.pacer.gov. 2 Feazell filed the Motion on July 17, 2020, seeking relief under Rule 60(b) of the 3 Federal Rules of Civil Procedure.3 (ECF No. 68.) The Motion challenges this Court’s order 4 as to a certificate of appealability and seeks leave to file an appeal. (Id. at 4.) Feazell 5 claims he can establish “extraordinary circumstances” to justify relief from the judgment 6 based on attorney abandonment by Neidert. He asserts that Neidert failed to adequately 7 communicate with him and filed the amended petition and other documents without giving 8 him the opportunity to first review the filings. Consequently, Feazell contends that Neidert 9 did not include a sufficient explanation to avoid the time-bar. In particular, he states he 10 can show diligence because he filed his original petition at the “first opportunity” with 11 inmate assistance. (Id. at 6.) He further argues that Neidert abandoned him after the 12 dismissal order was entered by failing to answer his correspondence and thus “denying 13 him his right to an appeal within a 30 day [sic] time frame.” (Id. at 4.) In addition, with 14 regard to his actual innocence claim, Feazell contends that this Court (i) should have 15 allowed him to develop facts regarding his alibi witnesses and conducted an evidentiary 16 hearing, and (ii) failed to consider trial counsel’s ineffective assistance. (Id. at 3, 6-7.) 17 II. DISCUSSION 18 A. Governing Law 19 Federal Rule of Civil Procedure 60(b) provides for relief from judgment for a list of 20 enumerated reasons. “In the habeas context, Rule 60(b) applies to the extent that it is not 21 inconsistent with the Anti-Terrorism and Effective Death Penalty Act (‘AEDPA’).” Hall v. 22 Haws, 861 F.3d 977, 984 (9th Cir. 2017) (citing Gonzalez v. Crosby, 545 U.S. 524, 529 23 (2005)). “Rule 60(b)(6) permits reopening for ‘any . . . reason that justifies relief’ other 24 than the more specific reasons set out in Rule 60(b)(1)-(5).” Wood v. Ryan, 759 F.3d 25 1117, 1119-20 (9th Cir. 2014). Under Rule 60(b)(6), “extraordinary circumstances” are 26 required to justify the reopening of a final judgment. Gonzalez, 545 U.S. at 535; Riley v. 27

28 3All references to a “Rule” or “Rules” in this order refer to the Federal Rules of Civil 2 in the habeas context’.” Wood, 759 F.3d at 1120 (quoting Gonzalez, 545 U.S. at 535); 3 Hall, 861 F.3d at 984 (noting that “AEDPA poses significant hurdles for a Rule 60(b) 4 petitioner”). 5 “A Rule 60(b) motion is proper when it ‘attacks, not the substance of the federal 6 court’s resolution of a claim on the merits, but some defect in the integrity of the federal 7 habeas proceedings’.” Wood, 759 F.3d at 1120 (quoting Gonzalez, 545 U.S. at 532). 8 However, a Rule 60(b) motion “constitutes a second or successive petition if it ‘seek[s] 9 leave to present newly discovered evidence in support of a claim previously denied’.” Id. 10 (quoting Gonzalez, 545 U.S. at 531). When the substance of a petitioner’s claim was 11 “previously decided on the merits, and a Rule 60(b) motion that seeks leave to develop 12 new evidence as to the claim” the court must deny the motion “as an unauthorized second 13 or successive petition.” Id. (citing Gonzalez, 545 U.S. at 531). Federal district courts lack 14 jurisdiction to consider an unauthorized second or successive petition. 28 U.S.C. 15 § 2244(b)(3) (requiring habeas petitioners to seek an order from the court of appeals 16 authorizing the federal district court to consider a second or successive petition before 17 such petition is filed); see also Burton v. Stewart, 549 U.S. 147, 152-53 (2007) 18 (determining that district court lacked jurisdiction to consider second or successive 19 habeas application); Post v. Bradshaw, 422 F.3d 419, 424-25 (6th Cir. 2005) (“all that 20 matters is [whether petitioner] is seeking vindication of or advancing a claim by taking 21 steps that lead inexorably to a merits-based attack on the prior dismissal of his habeas 22 petition.” (internal alterations and quotation marks omitted)). 23 The Ninth Circuit has held that “gross negligence by counsel amounting to ‘virtual 24 abandonment’ can be an ‘extraordinary circumstance’ ” justifying relief under Rule 25 60(b)(6). Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th Cir. 2012) (quoting Cmty. Dental 26 Servs. v. Tani, 282 F.3d 1164, 1169-71 (9th Cir. 2002) (internal alterations marks 27 omitted)). “A federal habeas petitioner—who as such does not have a Sixth Amendment 28 right to counsel—is ordinarily bound by his attorney’s negligence, because the attorney 2 actions of the agent.” Id. at 1253 (citation omitted).4 “However, when a federal habeas 3 petitioner has been inexcusably and grossly neglected by his counsel in a manner 4 amounting to attorney abandonment in every meaningful sense that has jeopardized the 5 petitioner’s appellate rights, a district court may grant relief pursuant to Rule 60(b)(6).” Id. 6 at 1253 (citing Maples v. Thomas, 565 U.S. 266, 283 (2012); Tani, 282 F.3d at 1170). 7 B. Feazell Fails to Meet the Rule 60(b) Standard 8 Feazell has not demonstrated that extraordinary circumstances warrant relief from 9 judgment in this case. To support his attorney abandonment claim, Feazell attached 10 unauthenticated copies of three letters to Neidert, dated in January and February 2020, 11 and an inmate request form indicating that Feazell had not received legal mail from 12 Neidert since April 2019. (ECF No. 68 at 8-11.) He asks the Court to find abandonment 13 because he consistently reached out to Neidert between June 2019 and January 2020 14 but never heard back and learned of the dismissal order through research in the prison 15 law library. 16 It is unclear from the Motion what attorney/client communication, if any, occurred 17 to notify Feazell of the dismissal order or discuss potential next steps.5 However, even if 18 the assertions of poor communication are correct, the record shows that Feazell was not 19 deprived of a meaningful opportunity to challenge the Court’s dismissal order. Neidert 20 timely filed a notice of appeal on Feazell’s behalf. (ECF No. 65.) Neidert then requested 21

22 4See also Coleman v. Thompson, 501 U.S. 722, 753 (1991) (“Attorney ignorance or inadvertence is not ‘cause’ [for excusing procedural default] because the attorney is 23 the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error’.” (quoting Murray v. Carrier, 477 U.S. 478, 24 488 (1986)).

25 5The Court reminds counsel that, under Rule 1.4 of the Nevada Rules of Professional Conduct, every attorney licensed to practice in Nevada has a duty of 26 communication with their client. That includes keeping the client reasonably informed about the status of the matter, promptly complying with reasonable requests for 27 information, and explaining issues to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Attorneys admitted to practice 28 in the District of Nevada must adhere to the standards of conduct prescribed by the 2 Feazell’s case as untimely. The Ninth Circuit denied a certificate of appealability in March 3 2020. (ECF No. 67.) Given Neidert’s timely pursuit of a certificate of appealability, the 4 Court finds that Feazell’s appellate rights were not jeopardized and Neidert did not 5 abandon Feazell. Cf. Foley v. Biter, 793 F.3d 998, 1003 (9th Cir. 2015) (finding 6 abandonment where counsel failed to inform Foley at any time his petition was denied or 7 take any measures to preserve his appellate rights and opportunities). 8 More importantly, Feazell’s arguments plainly show an attempt to attack the 9 substance of this Court’s dismissal order, rather than a defect in the integrity of these 10 proceedings—thus, his Motion constitutes a second or successive petition. See 11 Gonzalez, 545 U.S. at 532 n.5 (observing that a habeas petitioner’s Rule 60 motion 12 “based on the movant’s own conduct, or his habeas counsel’s omissions, ... ordinarily 13 does not go to the integrity of the proceedings,” and thus is subject to the bar on second 14 or successive habeas petitions). For example, Feazell contends that Neidert did not 15 include a sufficient explanation or reasons to avoid the time-bar in opposition to 16 Respondents’ dismissal motion. In essence, he asks the Court for a do-over by arguing, 17 if he is allowed to appeal, he can fix Neidert’s deficiencies and show “relentless diligence.” 18 (ECF No. 68 at 6.) He also asserts the Court should have allowed him to develop the 19 facts regarding his alibi witnesses and conduct an evidentiary hearing before reviewing 20 his actual innocence claim. These assertions squarely challenge the substance of the 21 dismissal order and lack of evidentiary development. See Wood, 759 F.3d at 1120-21 22 (rejecting petitioner’s contention that he was not challenging the substance of the district 23 court’s ruling, but instead challenging the denial of evidentiary development designed to 24 substantiate that claim). Accordingly, the Court must deny the Motion as an unauthorized 25 second or successive petition for which it lacks jurisdiction. 26 /// 27 /// 28 /// 1 || Ill. CONCLUSION 2 It is therefore ordered that Petitioner Doneale Feazell’s motion for relief from final 3 || judgment (ECF No. 68) is denied. 4 DATED THIS 9" day of October 2020. {SL 6 / ~ MIRANDA M. DU 7 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28