3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 BRYAN MICHAEL FERGASON, Case No. 2:19-cv-00946-GMN-BNW
6 Petitioner, v. ORDER GRANTING IN PART MOTION 7 TO DISMISS THIRD AMENDED BRIAN WILLIAMSON, et al., PETITION 8 Respondents. 9 10 Counseled Nevada prisoner Bryan Fergason brings this habeas corpus action under 28 11 U.S.C. § 2254 to challenge his 2008 state court convictions for conspiracy to possess stolen 12 property or commit burglary and possession of stolen property. Fergason filed a third amended 13 petition asserting five grounds for relief. (ECF No. 70). Respondents move to dismiss the petition 14 as a mixed or, alternatively, to dismiss Grounds 1, 2(B), and 2(C). (ECF No. 73). The parties agree 15 that Grounds 1 and 2(B) should be dismissed with prejudice for the reasons stated in the Court’s 16 September 30, 2021, order. They also agree that Ground 2(C) is technically exhausted and 17 procedurally defaulted. Fergason argues that he obtained an expert valuation and can show cause 18 and prejudice to overcome the default of that claim under Martinez v. Ryan, 566 U.S. 1 (2012). 19 The parties agree that the Court should defer ruling on the procedural-default question until it 20 adjudicates the merits of the third amended petition. 21 The Court agrees that Grounds 1 and 2(B) should be dismissed with prejudice for the 22 reasons stated in the Court’s September 30, 2021, order. The Court agrees with the parties about 23 how to address Ground 2(C). The Court therefore grants the motion in part, dismissing with 24 prejudice Grounds 1, 2(B), and deferring ruling on Ground 2(C). 25 I. PROCEDURAL BACKGROUND 26 On June 3, 2019, Fergason filed an application to proceed in forma pauperis and submitted 27 a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF Nos. 1, 1-1). Fergason 28 filed a counseled first amended petition on December 19, 2019. (ECF No. 13). On December 15, 2 2(C), 2(D), and 3. (ECF No. 33). And he moved for leave to conduct discovery about Ground 3 2(D). (ECF No. 34). 4 Respondents moved to dismiss the second amended petition, arguing that it is mixed 5 because Grounds 2(B), 2(C), and 2(D) are unexhausted, and Ground 1 is not cognizable. (ECF 6 No. 42). The Court granted Fergason’s motion to conduct discovery for Ground 2(D) and granted 7 in part and denied in part Respondents’ dismissal motion. (ECF No. 61). The Court dismissed 8 with prejudice Grounds 1 and 2(B) but denied the motion as to Grounds 2(C) and 2(D). (Id. at 13). 9 The Court gave Fergason deadlines to complete discovery for Ground 2(D), obtain an expert 10 valuation for Ground 2(C), and provide notice about how he intended to proceed in this case. (Id.) 11 After granting several requests to extend the deadline for Fergason to complete discovery, 12 (ECF Nos. 63, 65, 67), Fergason moved for leave to file a third amended petition. (ECF No. 68). 13 Fergason explained that he was abandoning Ground 2(D) and incorporating the factual support for 14 Ground 2(C) that he obtained during discovery. (Id. at 2). And although the Court had dismissed 15 Grounds 1 and 2(B) with prejudice, Fergason sought to replead them. (Id.) Fergason explained 16 that he wasn’t “seeking reconsideration from this Court of its decision dismissing those claims. 17 Rather, he simply wants to avoid any argument he would be abandoning those claims (and 18 precluding potential appellate review) by omitting them from the proposed third amended 19 petition.” (Id.) Respondents did not file a response and the Court granted the motion. (ECF No. 69). 20 On April 6, 2022, Fergason filed his third amended petition asserting five grounds for 21 relief: (1) the police lacked authority to stop the van and detain Monroe and Fergason; (2) trial 22 counsel provided ineffective assistance by (A) failing to object to testimony about prior burglaries, 23 (B) failing to seek the judge’s recusal before sentencing, and (C) failing to hire a valuation expert; 24 and (3) Fergason’s aggregate sentence is disproportionate and cruel and unusual punishment. 25 (ECF No. 70). Respondents now move to dismiss the petition as mixed or, alternatively, to dismiss 26 Ground 1 as not cognizable and Grounds 2(B) and 2(C) as unexhausted. (ECF No. 73). Fergason 27 responds that because Respondents’ current motion to dismiss is substantially identical to their 28 earlier motion, and no party seeks reconsideration of the Court’s order on that motion, the Court 2 Respondents do not disagree and, like Fergason, argue that the Court should defer ruling on 3 whether Fergason can demonstrate cause and prejudice under Martinez for Ground 2(C) until after 4 the parties have answered and replied. (ECF No. 75). 5 II. DISCUSSION 6 A. Ground 1 7 Fergason asserts under Ground 1 that his rights under the Fourth, Fifth, Sixth, and 8 Fourteenth Amendments to the U.S. Constitution were violated because police lacked authority to 9 stop the van and detain him and Monroe. (ECF No. 70 at 9). The Court previously found that 10 Ferguson had a full and fair opportunity to litigate this Fourth Amendment claim in the state courts, 11 and so dismissed Ground 1 with prejudice under Stone v. Powell, 428 U.S. 465 (1976). (ECF 12 No. 61 at 10–12). The parties do not move for reconsideration of the Court’s order, and their 13 positions on these issues are unchanged. For the reasons explained in the Court’s September 30, 14 2021, order, Ground 1 is dismissed with prejudice as not addressable in a federal habeas action. 15 B. Ground 2(B) 16 Fergason asserts under Ground 2(B) that his rights under the Fifth, Sixth, and Fourteenth 17 Amendments to the U.S. Constitution were violated because trial counsel provided ineffective 18 assistance by failing to seek the judge’s recusal before sentencing. (ECF No. 70 at 16). The Court 19 previously determined that Ground 2(B) is unexhausted because it was not fairly presented to the 20 state courts. (ECF No. 61 at 3–4). The Court determined that Ground 2(B) is procedurally 21 defaulted because the state courts would dismiss a petition raising this claim as untimely and 22 successive under NRS 34.726 and 34.810. (Id. at 6). And the Court dismissed Ground 2(B) with 23 prejudice because Fergason had no argument for cause and prejudice to excuse the default other 24 than Martinez but had not proposed how Martinez might apply to Ground 2(B). (Id.) 25 The parties do not move for reconsideration of the Court’s order, and their positions on 26 these issues are unchanged. For the reasons explained in the Court’s September 30, 2021, order, 27 Ground 2(B) is dismissed with prejudice as procedurally defaulted. 28 2 Fergason asserts under Ground 2(C) that his rights under the Fifth, Sixth, and Fourteenth 3 Amendments to the U.S. Constitution were violated because trial counsel provided ineffective 4 assistance by failing to hire a valuation expert. (ECF No. 70 at 19). The Court previously stated 5 that Ground 2(C) is unexhausted because it was not fairly presented to the state courts. (ECF 6 No. 61 at 4). Fergason, however, proposed a means that would allow him to take advantage of 7 Martinez: obtain an expert valuation of the stolen property to make Ground 2(C) a new claim that 8 the state courts would not have considered. (Id. at 7).
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 BRYAN MICHAEL FERGASON, Case No. 2:19-cv-00946-GMN-BNW
6 Petitioner, v. ORDER GRANTING IN PART MOTION 7 TO DISMISS THIRD AMENDED BRIAN WILLIAMSON, et al., PETITION 8 Respondents. 9 10 Counseled Nevada prisoner Bryan Fergason brings this habeas corpus action under 28 11 U.S.C. § 2254 to challenge his 2008 state court convictions for conspiracy to possess stolen 12 property or commit burglary and possession of stolen property. Fergason filed a third amended 13 petition asserting five grounds for relief. (ECF No. 70). Respondents move to dismiss the petition 14 as a mixed or, alternatively, to dismiss Grounds 1, 2(B), and 2(C). (ECF No. 73). The parties agree 15 that Grounds 1 and 2(B) should be dismissed with prejudice for the reasons stated in the Court’s 16 September 30, 2021, order. They also agree that Ground 2(C) is technically exhausted and 17 procedurally defaulted. Fergason argues that he obtained an expert valuation and can show cause 18 and prejudice to overcome the default of that claim under Martinez v. Ryan, 566 U.S. 1 (2012). 19 The parties agree that the Court should defer ruling on the procedural-default question until it 20 adjudicates the merits of the third amended petition. 21 The Court agrees that Grounds 1 and 2(B) should be dismissed with prejudice for the 22 reasons stated in the Court’s September 30, 2021, order. The Court agrees with the parties about 23 how to address Ground 2(C). The Court therefore grants the motion in part, dismissing with 24 prejudice Grounds 1, 2(B), and deferring ruling on Ground 2(C). 25 I. PROCEDURAL BACKGROUND 26 On June 3, 2019, Fergason filed an application to proceed in forma pauperis and submitted 27 a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. (ECF Nos. 1, 1-1). Fergason 28 filed a counseled first amended petition on December 19, 2019. (ECF No. 13). On December 15, 2 2(C), 2(D), and 3. (ECF No. 33). And he moved for leave to conduct discovery about Ground 3 2(D). (ECF No. 34). 4 Respondents moved to dismiss the second amended petition, arguing that it is mixed 5 because Grounds 2(B), 2(C), and 2(D) are unexhausted, and Ground 1 is not cognizable. (ECF 6 No. 42). The Court granted Fergason’s motion to conduct discovery for Ground 2(D) and granted 7 in part and denied in part Respondents’ dismissal motion. (ECF No. 61). The Court dismissed 8 with prejudice Grounds 1 and 2(B) but denied the motion as to Grounds 2(C) and 2(D). (Id. at 13). 9 The Court gave Fergason deadlines to complete discovery for Ground 2(D), obtain an expert 10 valuation for Ground 2(C), and provide notice about how he intended to proceed in this case. (Id.) 11 After granting several requests to extend the deadline for Fergason to complete discovery, 12 (ECF Nos. 63, 65, 67), Fergason moved for leave to file a third amended petition. (ECF No. 68). 13 Fergason explained that he was abandoning Ground 2(D) and incorporating the factual support for 14 Ground 2(C) that he obtained during discovery. (Id. at 2). And although the Court had dismissed 15 Grounds 1 and 2(B) with prejudice, Fergason sought to replead them. (Id.) Fergason explained 16 that he wasn’t “seeking reconsideration from this Court of its decision dismissing those claims. 17 Rather, he simply wants to avoid any argument he would be abandoning those claims (and 18 precluding potential appellate review) by omitting them from the proposed third amended 19 petition.” (Id.) Respondents did not file a response and the Court granted the motion. (ECF No. 69). 20 On April 6, 2022, Fergason filed his third amended petition asserting five grounds for 21 relief: (1) the police lacked authority to stop the van and detain Monroe and Fergason; (2) trial 22 counsel provided ineffective assistance by (A) failing to object to testimony about prior burglaries, 23 (B) failing to seek the judge’s recusal before sentencing, and (C) failing to hire a valuation expert; 24 and (3) Fergason’s aggregate sentence is disproportionate and cruel and unusual punishment. 25 (ECF No. 70). Respondents now move to dismiss the petition as mixed or, alternatively, to dismiss 26 Ground 1 as not cognizable and Grounds 2(B) and 2(C) as unexhausted. (ECF No. 73). Fergason 27 responds that because Respondents’ current motion to dismiss is substantially identical to their 28 earlier motion, and no party seeks reconsideration of the Court’s order on that motion, the Court 2 Respondents do not disagree and, like Fergason, argue that the Court should defer ruling on 3 whether Fergason can demonstrate cause and prejudice under Martinez for Ground 2(C) until after 4 the parties have answered and replied. (ECF No. 75). 5 II. DISCUSSION 6 A. Ground 1 7 Fergason asserts under Ground 1 that his rights under the Fourth, Fifth, Sixth, and 8 Fourteenth Amendments to the U.S. Constitution were violated because police lacked authority to 9 stop the van and detain him and Monroe. (ECF No. 70 at 9). The Court previously found that 10 Ferguson had a full and fair opportunity to litigate this Fourth Amendment claim in the state courts, 11 and so dismissed Ground 1 with prejudice under Stone v. Powell, 428 U.S. 465 (1976). (ECF 12 No. 61 at 10–12). The parties do not move for reconsideration of the Court’s order, and their 13 positions on these issues are unchanged. For the reasons explained in the Court’s September 30, 14 2021, order, Ground 1 is dismissed with prejudice as not addressable in a federal habeas action. 15 B. Ground 2(B) 16 Fergason asserts under Ground 2(B) that his rights under the Fifth, Sixth, and Fourteenth 17 Amendments to the U.S. Constitution were violated because trial counsel provided ineffective 18 assistance by failing to seek the judge’s recusal before sentencing. (ECF No. 70 at 16). The Court 19 previously determined that Ground 2(B) is unexhausted because it was not fairly presented to the 20 state courts. (ECF No. 61 at 3–4). The Court determined that Ground 2(B) is procedurally 21 defaulted because the state courts would dismiss a petition raising this claim as untimely and 22 successive under NRS 34.726 and 34.810. (Id. at 6). And the Court dismissed Ground 2(B) with 23 prejudice because Fergason had no argument for cause and prejudice to excuse the default other 24 than Martinez but had not proposed how Martinez might apply to Ground 2(B). (Id.) 25 The parties do not move for reconsideration of the Court’s order, and their positions on 26 these issues are unchanged. For the reasons explained in the Court’s September 30, 2021, order, 27 Ground 2(B) is dismissed with prejudice as procedurally defaulted. 28 2 Fergason asserts under Ground 2(C) that his rights under the Fifth, Sixth, and Fourteenth 3 Amendments to the U.S. Constitution were violated because trial counsel provided ineffective 4 assistance by failing to hire a valuation expert. (ECF No. 70 at 19). The Court previously stated 5 that Ground 2(C) is unexhausted because it was not fairly presented to the state courts. (ECF 6 No. 61 at 4). Fergason, however, proposed a means that would allow him to take advantage of 7 Martinez: obtain an expert valuation of the stolen property to make Ground 2(C) a new claim that 8 the state courts would not have considered. (Id. at 7). That claim “would be unexhausted not 9 because Fergason failed to raise [it] on appeal, but because Fergason’s postconviction counsel did 10 not raise [it] in the state district court.” (Id.) But state courts would not consider Fergason’s 11 Martinez argument, so the claim would be procedurally defaulted and technically exhausted. (Id.) 12 And if the Court agrees with Fergason’s Martinez argument, then he can get de novo review of 13 Ground 2(C). (Id.) 14 After careful analysis, the Court concluded that if Fergason can obtain an expert valuation 15 on his own, Ground 2(C) “would be in [a] significantly different and stronger procedural 16 posture[ ].” (Id. at 9). It would be a new claim. Then Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 17 2014) (en banc), would be controlling precedent, allowing Fergason to obtain de novo review of 18 Ground 2(C) from this Court. (Id.) So, the Court set a deadline for Fergason to obtain an expert 19 valuation and denied the dismissal motion as to Ground 2(C). (Id. at 10). 20 Fergason now argues that Ground 2(C) is substantially improved from the version of the 21 claim that he raised in state court because he has obtained an expert valuation opinion that 22 concludes the State presented insufficient evidence at trial to reliably value the stolen property. 23 (ECF No. 74 at 4–5). He argues that Ground 2(C) is a new claim for exhaustion purposes, but the 24 state courts would decline to consider it on procedural grounds as being presented in an untimely 25 and successive petition. (Id. at 5 (citing Nev. Rev. Stat. §§ 34.726, 34.810; Brown v. McDaniel, 26 331 P.3d 867 (2014)). So, Fergason continues, Ground 2(C) is technically exhausted and 27 procedurally defaulted, but he can rely on Martinez to overcome the default if he can show that his 28 state postconviction counsel provided ineffective assistance by failing to litigate this new version 2 default question until the merits stage. (Id. at 7). Respondents do not disagree and also ask the 3 Court to defer ruling until the merits stage. (ECF No. 75 at 2–3). 4 The Court decided that it could consider a new expert evaluation in deciding Fergason’s 5 potential Martinez argument before the Supreme Court altered the landscape in Shinn v. Ramirez, 6 --- U.S. ---, 142 S. Ct. 1718 (2022), by “greatly restricting the circumstances in which a federal 7 habeas court deciding Martinez claims may consider evidence beyond that already contained in 8 the state record.” Creech v. Richardson, 40 F.4th 1013, 1028 (9th Cir. 2022). Before Ramirez, a 9 federal habeas court “could consider new evidence supporting a claim of [ineffective assistance of 10 counsel] by [postconviction review] counsel in determining whether a petitioner satisfies the 11 requirements of Martinez without running afoul of” 28 U.S.C. § 2254(e)(2) and Cullen v. 12 Pinholster, 563 U.S. 170 (2011). Id. (citing Dickens, 740 F.3d at 1320). But after Ramirez, if 28 13 U.S.C. § 2254(e)(2) “applies and the prisoner cannot satisfy its ‘stringent requirements,’ a federal 14 court may not hold an evidentiary hearing—or otherwise consider new evidence—to assess cause 15 and prejudice under Martinez.” Ramirez, 142 S. Ct. at 1739 (quoting Williams v. Taylor, 529 U.S. 16 420, 433 (2000)). 17 “Section 2254(e)(2) provides that, if a prisoner ‘has failed to develop the factual basis of a 18 claim in State court proceedings,’ a federal court may hold ‘an evidentiary hearing on the claim’ 19 in only two limited scenarios.” Id. at 1734. “Either the claim must rely on (1) a ‘new’ and 20 ‘previously unavailable’ ‘rule of constitutional law’ made retroactively applicable by [the 21 Supreme] Court, or (2) ‘a factual predicate that could not have been previously discovered through 22 the exercise of due diligence.’” Id. (quoting 28 U.S.C. § 2254(e)(2)(A)(i), (ii)). Moreover, 23 “§ 2254(e)(2) applies only when a prisoner ‘has failed to develop the factual basis of a claim.” Id. 24 “Failed” means that the prisoner is “at fault” for the undeveloped state-court record, in other words, 25 “if he ‘bears responsibility for the failure’ to develop the record.” Id. (quoting Williams, 529 U.S. 26 at 432). And “under AEDPA and [the Supreme Court’s] precedents, state postconviction counsel’s 27 ineffective assistance in developing the state-court record is attributed to the prisoner.” Id. 28 2 of months before Respondents filed their dismissal motion and Creech was issued just two weeks 3 before Fergason filed his response brief. The Court therefore defers ruling on Ground 2(C) as 4 requested by the parties. 5 III. CONCLUSION 6 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss Third Amended 7 Petition for Writ of Habeas Corpus (ECF No. 73) is GRANTED IN PART AND DENIED IN 8 PART: 9 1. Ground 1 is dismissed with prejudice as not addressable in a federal habeas action; and 10 2. Grounds 2(B) is dismissed with prejudice as procedurally defaulted; 11 3. The court defers ruling on Ground 2(C) as requested by the parties. 12 IT IS FURTHER ORDERED that Respondents have until January 5, 2023 to file and 13 serve an answer to Fergason’s remaining grounds for relief: 2(A), 2(C) and 3. The answer must 14 contain all substantive and procedural arguments as to all surviving claims of the third amended 15 petition. And the answer must comply with Rule 5 of the Rules Governing Proceedings in the 16 United States District Courts under 28 U.S.C. § 2254. Petitioner Fergason will then have 30 17 days following service of Respondents’ answer to file a reply. 18 DATED: December 5, 2022 19 GLORIA M. NAVARRO 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28