Harris v. State of Nevada

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Tiyacte Harris, Case No. 2:16-cv-02891-APG-DJA

4 Petitioner, ORDER

5 v. [ECF No. 50]

6 Natalie Wood, et al.,

7 Respondents.

9 The Respondents move to dismiss Tiyacte Harris’s fourth amended federal habeas 10 petition as unexhausted. ECF No. 50. For the reasons stated below, I grant the motion in part. 11 I. EXHAUSTION LEGAL STANDARD 12 A state prisoner must exhaust state court remedies on a habeas claim before presenting 13 that claim to the federal court. 28 U.S.C. § 2254(b)(1)(A). This ensures that the state courts, as a 14 matter of comity, will have the first opportunity to address and correct alleged violations of 15 federal constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). “A 16 petitioner has exhausted his federal claims when he has fully and fairly presented them to the 17 state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. 18 Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 2254(c) requires only that state prisoners give 19 state courts a fair opportunity to act on their claims.”)). 20 To satisfy the exhaustion requirement, a claim must have been raised through one 21 complete round of either direct appeal or collateral proceedings to the highest state court level of 22 review available. O’Sullivan, 526 U.S. at 844–45; Peterson v. Lampert, 319 F.3d 1153, 1156 (9th 23 Cir. 2003) (en banc). A properly exhausted claim “‘must include reference to a specific federal 1 constitutional guarantee, as well as a statement of the facts that entitle the petitioner to 2 relief.’” Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)); 3 Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both the 4 operative facts and federal legal theory upon which a claim is based).

5 II. DISCUSSION 6 The Respondents argue that grounds 1 and 2 are unexhausted. ECF No. 50 at 5. In 7 ground 1, Harris alleges that he did not enter a knowing and voluntary guilty plea, in violation of 8 his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. 9 ECF No. 49 at 6. And in ground 2, Harris alleges that he received ineffective assistance from 10 counsel in connection with his decision to plead guilty, in violation of his rights under the Fifth, 11 Sixth, and Fourteenth Amendments to the United States Constitution. Id. Harris admits that 12 these grounds were not presented to the state courts, but he argues that the exhaustion 13 requirement should be excused because the state post-conviction proceedings were defective. 14 ECF No. 51 at 2. Alternatively, Harris argues that ground 2 is technically exhausted, and he can

15 overcome the procedural default. ECF No. 51 at 3–4. 16 A. Exhaustion is not excused 17 “[A] habeas petitioner may be excused from exhausting a given claim where (1) ‘there is 18 an absence of available State corrective process,’ or (2) ‘circumstances exist that render such 19 process ineffective to protect the rights of the applicant.’” Alfaro v. Johnson, 862 F.3d 1176, 20 1180 (9th Cir. 2017) (quoting 28 U.S.C. § 2254(b)(1)(B)(i)–(ii)). Under § 2254(b)(1)(B)(ii), “a 21 petitioner may seek redress in federal court ‘if the [state] corrective process is so clearly deficient 22 as to render futile any effort to obtain relief.’” Id. (quoting Duckworth v. Serrano, 454 U.S. 1, 3 23 (1981)) (emphasis in original); see also Rose v. Lundy, 455 U.S. 509, 516 n.7 (1982) (“[T]he 1 exhaustion doctrine does not bar relief where the state remedies are inadequate or fail to ‘afford a 2 full and fair adjudication of the federal contentions raised’”) (quoting Ex parte Hawk, 321 U.S. 3 114, 118 (1944)). 4 1. Background information

5 On September 6, 2013, Harris was charged with (1) battery with intent to commit a 6 crime, (2) battery with use of a deadly weapon, (3) assault with a deadly weapon, (4) assault with 7 a deadly weapon, and (5) attempted robbery. ECF No. 11-3. Harris agreed to plead guilty to one 8 count of assault with a deadly weapon. ECF No. 11-10. The state district court suspended 9 Harris’s sentence, placed him on probation, and entered a judgment of conviction on December 10 17, 2013. ECF No. 11-14. Harris did not appeal. 11 Harris filed a state post-conviction petition on December 16, 2014. ECF No. 11-16 12 (“2014 Petition”). The state district court held a hearing on that petition on February 26, 2015. 13 ECF No. 11-21. The judge told Harris that petition could not be granted because Harris was out 14 of custody and on probation:

15 A couple things, to begin with, under Nevada statutes, writs of habeas corpus are filed by people that are incarcerated. You’re 16 confined. You’re detained. You’re committed somewhere. You’re restrained in some fashion. And a habeas corpus relief kind of 17 addresses the reasons for that confinement. Not, you’re out of custody and kind of want somebody to go back and look at the deal 18 that you entered into and whether your attorney did what they should have or not. 19 So I can’t really grant this. It’s not even in the form that’s 20 required by statute if you wanted to pursue habeas corpus relief. It looks to me like what you’re really kind of getting at is you want to 21 withdraw the plea that was entered. So there is, you know, you can try and file a motion in that regard if you want. But it’s just a motion 22 to withdraw plea. It’s not a habeas corpus petition, okay?

23 1 Id. at 3. The judge did not enter a written order denying Harris’s first state post-conviction 2 petition. 3 As instructed, Harris filed a motion for post-conviction relief on May 21, 2015. ECF No. 4 11-24. The state district court held a hearing on July 14, 2015, and orally denied Harris’s

5 motion, “noting there [was] no manifest injustice to withdraw plea.” ECF No. 11-2 at 18. 6 Harris eventually pursued a second round of state post-conviction proceedings, and the 7 Nevada Court of Appeals noted that Harris’s 2014 Petition was still pending because the state 8 district court “never filed a written order finally disposing of it.” ECF No. 12-28 at 3 n.2. 9 Regarding his 2014 Petition, Harris filed a pro se motion for appointment of counsel and for 10 leave to file a supplemental petition on August 6, 2020. ECF No. 47-3. The state district court 11 denied the motion and request for leave to file a supplemental petition on September 23, 2020. 12 ECF No. 47-6. On February 22, 2021, the state district court issued a formal written order 13 denying the 2014 Petition on the merits. ECF No. 47-10. Harris appealed, and the Nevada Court 14 of Appeals affirmed on September 24, 2021. ECF No. 47-12.

15 2. Analysis 16 Considering the totality of the post-conviction proceedings and state habeas appeal, I 17 cannot conclude that exhaustion is excused. To be sure, there were patent deficiencies in the 18 state post-conviction proceedings—namely (1) the state district court’s erroneous oral comments 19 at the February 26, 2015, hearing1 and (2) the state district court’s lengthy delay in issuing a 20

21 1The state district court’s comments that it could not grant Harris’s state post-conviction petition because he was on probation appears to be inconsistent with Nevada law. See Harris v. 22 State, 329 P.3d 619, 628 (Nev. 2014) (holding that, after the trial court has imposed sentence, a post-conviction habeas corpus petition is the exclusive remedy for a person challenging the 23 validity of a guilty plea). 1 written order denying the 2014 Petition. However, these deficiencies in the state post-conviction 2 proceedings did not affect the grounds at issue here, which were raised for the first time in 3 Harris’s federal habeas proceedings. Indeed, because Harris has not demonstrated that grounds 1 4 and 2 would have been included in his 2014 Petition but for the state district court’s erroneous

5 2015 comments and failure to issue a written order resulting in the delay, Harris’s 28 U.S.C. 6 § 2254(b)(1)(B)(ii) argument is a non-starter. Because those deficiencies did not render the state 7 post-conviction process ineffective or inadequate as to grounds 1 and 2, exceptional 8 circumstances do not exist to excuse the exhaustion requirement. See Hendricks v. Zenon, 993 9 F.2d 664, 672 (9th Cir. 1993) (recognizing that the exhaustion requirement may be excused only 10 “in rare cases where exceptional circumstances of peculiar urgency are shown to exist” (citing 11 Granberry v. Greer, 481 U.S. 129, 134 (1987))); Edelbacher v. Calderon, 160 F.3d 582, 585 (9th 12 Cir. 1998) (recognizing that a federal habeas court “should not entertain [a] petitioner’s 13 [unexhausted] federal habeas petition” unless “the existence of extremely unusual circumstances 14 warrant an exception”).

15 Ground 1 is also procedurally defaulted. If Harris were to return to state court, Nevada’s 16 procedural rules would now bar him from bringing this claim. And though the burden falls on 17 Harris to prove good cause for the default and actual prejudice, he does not argue that he can 18 show cause and prejudice or actual innocence sufficient to overcome the procedural bars. 19 Ground 1 is therefore subject to dismissal as both unexhausted and procedurally defaulted. 20 B. Ground 2 is technically exhausted but procedurally defaulted 21 A claim may be considered procedurally defaulted if “it is clear that the state court would 22 hold the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). 23 Harris would face several procedural bars if he were to return to state court. See, e.g., Nev. Rev. 1 Stat. §§ 34.726 & 34.810. Nevada has “cause-and-prejudice” and “fundamental-miscarriage-of- 2 justice” exceptions to its procedural bars, which are substantially the same as the federal 3 standards. If a petitioner has a potentially viable cause-and-prejudice or actual-innocence 4 argument under the substantially similar federal and state standards, then the petitioner cannot

5 establish that “it is clear that the state court would hold the claim procedurally barred.” 6 Sandgathe, 314 F.3d at 376. For that reason, the courts in this district have generally declined to 7 find a claim subject to anticipatory procedural default unless the petitioner represents that he 8 would be unable to establish cause and prejudice in a return to state court. In such a case, the 9 claim would generally be subject to immediate dismissal as procedurally defaulted, as the 10 petitioner would have conceded that he has no grounds for exception to the procedural default in 11 federal court. 12 A different situation is presented, however, where the state court does not recognize a 13 potential basis to overcome the procedural default arising from the violation of a state procedural 14 rule that is recognized under federal law. In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme

15 Court held that the absence or inadequate assistance of counsel in an initial-review collateral 16 proceeding may be relied upon to establish cause excusing the procedural default of a claim of 17 ineffective assistance of trial counsel. Id. at 9. The Supreme Court of Nevada does not recognize 18 Martinez as cause to overcome a state procedural bar under Nevada law. Brown v. McDaniel, 19 331 P.3d 867, 875 (Nev. 2014). Thus, a Nevada habeas petitioner who relies upon Martinez— 20 and only Martinez—as a basis for overcoming a state procedural bar on an unexhausted claim 21 can successfully argue that the state courts would hold the claim procedurally barred but that he 22 nonetheless has a potentially viable cause-and-prejudice argument under federal law that would 23 not be recognized by the state courts when applying the state procedural bars. 1 Here, Harris advances only Martinez as a basis for excusing the anticipatory default of 2|| ground 2. See ECF No. 51 at 4. Accordingly, I grant Harris’s request to consider ground 2 3] technically exhausted. Because the cause-and-prejudice questions of ground 2 are necessarily connected to the merits of ground 2, I defer a determination on the cause-and-prejudice questions 5] of ground 2 until the time of merits determination. Accordingly, the motion to dismiss ground 2 as exhausted, or alternatively procedurally defaulted, is denied without prejudice. The 7|| Respondents may renew the procedural default argument in their answer. S| I. CONCLUSION 9 I THEREFORE ORDER that the Respondents’ motion to dismiss (ECF No. 50) is GRANTED, in part, as follows: (1) ground 1 is dismissed as unexhausted and procedurally 11]| defaulted, and (2) ground 2 is technically exhausted, but procedurally defaulted. 12 I FURTHER ORDER that consideration of whether Harris can demonstrate cause and 13]| prejudice under Martinez v. Ryan, 566 U.S. 1 (2012) to overcome the procedural default of 14]| ground 2 is deferred until after the filing of an answer and reply in this action. 15 I FURTHER ORDER that the Respondents shall have 60 days from the date of this order 16]| 1n which to file an answer to Harris’s remaining ground for relief. The answer shall contain all 17|| substantive and procedural arguments and shall comply with Rule 5 of the Rules Governing 18]| Proceedings in the United States District Courts under 28 U.S.C. §2254. Harris will then have 19||45 days from service of the answer within which to file a reply. 20 Dated: July 12, 2022. 21 G □ ANDREW P. GORDON 22 UNITED STATES DISTRICT JUDGE 23