Hemingway v. Beau

• Court: District Court, D. Nevada
• Decided: May 13, 2025
• Docket: 2:24-cv-00156
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 PEYTON HEMINGWAY, Case No. 2:24-cv-00156-MMD-DJA

7 Petitioner, ORDER v. 8 JEREMY BEAN, et al., 9 Respondents. 10

11 I. SUMMARY 12 This is a habeas corpus action brought under 28 U.S.C. § 2254 by Petitioner 13 Peyton Hemingway, a Nevada prisoner who is represented by counsel appointed under 14 the Criminal Justice Act. His claims include that his trial counsel rendered ineffective 15 assistance in several ways, including by failing to conduct any investigation and present 16 any mitigation evidence at sentencing. Respondents filed a motion to dismiss, arguing 17 that most claims are unexhausted and/or procedurally barred. (ECF No. 26 (“Motion to 18 Dismiss”).) Hemingway has filed a motion for a stay and abeyance. (ECF No. 25 (“Motion 19 to Stay”).) As discussed below, the Court grants the Motion to Stay and denies the Motion 20 to Dismiss without prejudice. 21 II. BACKGROUND 22 A. State-Court Proceedings 23 A jury in Las Vegas (Clark County), Nevada convicted Hemingway of second- 24 degree murder with use of a deadly weapon, second-degree kidnapping resulting in 25 substantial bodily harm, robbery, conspiracy to commit murder, conspiracy to commit 26 kidnapping, and conspiracy to commit robbery. (ECF No. 14-18.) The charges stemmed 27 from a 2013 incident during which Hemingway and Emilio Arenas allegedly beat an 28 acquaintance in a motel room. Hemingway and Arenas stuffed the victim, alive, into a 2 on the suitcase until it was submerged. (ECF No. 14-8 at 39-42.) Arenas was convicted 3 of first-degree murder. In March 2019, the state district court sentenced Hemingway to a 4 cumulative sentence of 28 years to life in prison. (ECF No. 15-6.) Judgment of conviction 5 was entered on March 29, 2019. (ECF No. 15-7.) 6 Hemingway appealed, and the Nevada Supreme Court affirmed his convictions. 7 (ECF No. 15-26.) That court also affirmed the denial of his state postconviction petition. 8 (ECF No. 18-14.) 9 B. Federal Habeas Proceedings 10 In January 2024, Hemingway dispatched his pro se federal habeas petition for 11 mailing. (ECF No. 5.) Counsel was appointed; through counsel Hemingway filed a first 12 amended petition setting out eleven grounds for relief: 13 Ground I(A): Trial counsel was ineffective for failing to evaluate the need for, obtain, and present a mental-health and substance abuse 14 evaluation to the sentencing court for mitigation purposes in violation of his Sixth and Fourteenth Amendment rights. 15

16 Ground I(B): Trial counsel was ineffective for failing to prepare or present mitigation at sentencing. 17 Ground II: Hemingway’s conviction violates the Sixth and Fourteenth 18 Amendments because trial counsel had a conflict of interest in his representation of Hemingway. 19

20 Ground III: Appellate counsel was ineffective for failing to raise trial counsel’s conflict of interest. 21 Ground IV: Trial counsel was ineffective for stipulating to the 22 admission of inculpatory grand-jury testimony of a deceased, adverse witness. 23

24 Ground V: The prosecution’s excessive witness notification list violated Hemingway’s Fourteenth Amendment due process rights. 25 Ground VI: Trial counsel was ineffective for failing to argue that the 26 prosecution’s excessive witness notification list violated Hemingway’s due process rights. 27

28 the prosecution’s excessive witness notification list violated due 2 process.

3 Ground VIII: Trial counsel was ineffective for failing to argue that a 4 juror should be disqualified due to non-residency, in violation of Hemingway’s Sixth and Fourteenth Amendment rights to a trial by a 5 jury of his peers.

6 Ground IX: Trial counsel was ineffective for failing to move to strike a disqualified juror. 7

8 Ground X: The trial court denied Hemingway a jury pool fairly representing a cross-section of the community or the ability to assess 9 whether the jury represented a fair cross section in violation of his Sixth Amendment rights. 10 Ground XI: The prosecutors committed misconduct by securing the 11 conviction in knowing reliance on unreliable testimony in violation of 12 Hemingway’s Sixth and Fourteenth Amendment rights.

13 (ECF No. 10.) 14 Respondents have moved for dismissal, arguing that grounds I through IX are 15 unexhausted, procedurally barred, and/or not cognizable. (ECF No. 26).1 Hemingway 16 asks the Court to stay these proceedings so that he can return to state court to exhaust 17 most of the claims in the petition. (ECF No. 25.)2 Hemingway has also asked the Court 18 for leave to file a second amended petition. (ECF No. 27.)3 19 III. DISCUSSION 20 Federal courts may not grant a writ of habeas corpus brought by a person in 21 custody under a state court judgment unless “the applicant has exhausted the remedies 22 available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). This exhaustion 23 requirement is “grounded in principles of comity” as it gives states “the first opportunity to 24 address and correct alleged violations of state prisoner’s federal rights.” Coleman v. 25 1Petitioner opposed the Motion to Dismiss, and Respondents replied. (ECF Nos. 26 29, 31.)

27 2Respondents opposed the Motion to Stay, and Petitioner replied. (ECF Nos. 28, 34.) 28 3 2 unexhausted petition without prejudice. See id. (noting that the Supreme Court “has long 3 held that a state prisoner’s federal habeas petition should be dismissed if the prisoner 4 has not exhausted available state remedies as to any of his federal claims”); Castille v. 5 Peoples, 489 U.S. 346, 349 (1989) (habeas petitions should be dismissed if state 6 remedies have not been exhausted as to any federal claims). 7 The Supreme Court has recognized that under certain circumstances, it may be 8 appropriate for a federal court to anticipate a state-law procedural bar of an unexhausted 9 claim, and to treat such a claim as subject to the procedural default doctrine. “An 10 unexhausted claim will be procedurally defaulted, if state procedural rules would now bar 11 the petitioner from bringing the claim in state court.” Dickens v. Ryan, 740 F.3d 1302, 12 1317 (9th Cir. 2014) (citing Coleman v. Thompson, 501 U.S. 722, 731 (1991)). 13 Regarding the legal standard for a motion to stay, a district court is authorized to 14 stay an unexhausted petition in “limited circumstances,” to allow a petitioner to present 15 unexhausted claims to the state court without losing his right to federal habeas review 16 due to the relevant one-year statute of limitations. Rhines v. Weber, 544 U.S. 269, 273- 17 75 (2005); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that district courts 18 have authority to stay and hold in abeyance both mixed petitions and “fully unexhausted 19 petitions under the circumstances set forth in Rhines”). Under the Rhines test, “a district 20 court must stay a mixed petition only if: (1) the petitioner has ‘good cause’ for his failure 21 to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; 22 and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation 23 tactics.” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. 24 at 278). 25 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does 26 not require “extraordinary circumstances.” Id. at 1024 (citing Jackson v. Roe, 425 F.3d 27 654, 661-62 (9th Cir. 2005)). But courts “must interpret whether a petitioner has ‘good 28 cause’ for a failure to exhaust in light of the Supreme Court’s instruction in Rhines that 2 Jackson, 425 F.3d at 661). Courts must also “be mindful that AEDPA aims to encourage 3 the finality of sentences and to encourage petitioners to exhaust their claims in state court 4 before filing in federal court.” Id. (citing Rhines, 544 U.S. at 276-77). 5 This Court has declined to prescribe the strictest possible standard for issuance of 6 a stay. See e.g., Riner v. Crawford, 415 F. Supp. 2d 1207, 1210 (D. Nev. 2006). “[G]ood 7 cause under Rhines, at least in this Circuit, should not be so strict a standard as to require 8 a showing of some extreme and unusual event beyond the control of the defendant.” Id. 9 For example, “petitioner’s reasonable confusion about whether a state filing would be 10 timely will ordinarily constitute ‘good cause’ for him to file in federal court.” Pace v. 11 DiGuglielmo, 544 U.S. 408, 416 (2005). Ineffective assistance of state postconviction 12 counsel can be good cause for a Rhines stay under the same standard as Martinez v. 13 Ryan. See Blake v. Baker, 745 F.3d 977, 983 (9th Cir. 2014) (finding that in Martinez, 566 14 U.S. 1 (2012), the Supreme Court ruled that ineffective assistance of state postconviction 15 counsel may serve as cause to excuse the federal procedural default of a claim of 16 ineffective assistance of trial counsel). 17 Hemingway argues that he satisfies Rhines because his unexhausted claims are 18 meritorious, he can demonstrate good cause for his failure to exhaust the claims because 19 his state postconviction counsel was ineffective, and he has not engaged in dilatory 20 tactics. With respect to ground I(A), Hemingway contends that a neuropsychological 21 report completed in 2024 shows the type of evidence of low IQ, cognitive impairment— 22 including low neurocognitive functioning with respect to self-regulatory processing— 23 special education, and a family history of physical and verbal abuse that he alleges trial 24 counsel ineffectively failed to investigate and present as mitigation at sentencing. (See 25 ECF No. 24-1.) Respondents oppose, arguing that under Shinn v. Ramirez, 596 U.S. 366 26 (2022), this Court may not consider new evidence upon Hemingway’s return here 27 following a stay. (ECF No. 28.) They also argue that Hemingway has not established that 28 2 not establish that the court would have given him a lesser sentence. 3 Parole & Probation had recommended a sentence of 17 years to life. (ECF No. 20- 4 1.) At the evidentiary hearing on Hemingway’s first state postconviction petition, trial 5 counsel testified that he did not do any investigation into mitigating factors for sentencing. 6 (ECF No. 18-1.) The transcript of counsel’s direct examination at the evidentiary hearing 7 is about a page in length; his entire testimony is less than four pages. (Id. at 5-9.) The 8 state district court sentenced Hemingway to 28 years to life. (Exh. 87, ECF No. 15-6.) 9 Hemingway has filed a state postconviction petition setting forth the claim that trial 10 counsel was ineffective for failing to investigate and present mitigation at sentencing that 11 includes the new neuropsychological report. 12 It is unclear on what basis the state courts might consider the unexhausted 13 ineffective assistance of trial counsel claim regarding mitigation at sentencing, but it is not 14 plainly meritless. Hemingway is already litigating his second state postconviction petition. 15 The Court notes that Ramirez does not concern the good cause requirement for a Rhines 16 stay. So the Court need not determine at this time whether it will entertain new evidence 17 upon Hemingway’s return to the Court following a stay. There is also no indication that 18 Hemingway has intentionally engaged in dilatory litigation tactics.4 And if he obtains relief 19 in state court, his petition here would be rendered moot. Accordingly, the Court grants the 20 Motion to Stay. The Court declines Respondents’ request to impose any pre-condition to 21 Hemingway’s returning to continue litigating his federal petition upon the conclusion of 22 the state proceedings.5 In light of the stay, the Motion to Dismiss is denied without 23 prejudice. 24 25

26 4Generally, petitioners serving a non-capital sentence presumably want to obtain relief as promptly as possible. See Evans v. Chavis, 546 U.S. 189, 203 n.1 (2006) 27 (Stevens, J., concurring).

28 5Of course, Respondents will remain free to argue affirmative defenses and 2 No. 27.) Under Federal Rule of Civil Procedure 15(a)(2), a party may amend a pleading 3 with the court’s leave. “The court should freely give leave when justice so requires.” Rule 4 15 reflects a “policy of favoring amendments to pleadings,” and courts should apply that 5 policy “with ‘extreme liberality.’” United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981); 6 see also Walker v. Baker, No. 2:15-cv-01240-RFB-GWF, 2016 WL 1298107, at *1 (D. 7 Nev. Mar. 31, 2016). In deciding whether to grant leave, a court may consider any “bad 8 faith,” “undue delay,” or previous amendments on the part of the petitioner; any potential 9 “prejudice to the opposing party”; and the potential “futility” of the amended pleading. In 10 re Morris, 363 F.3d 891, 894 (9th Cir. 2004); see also Clemons v. Williams, No. 2:11-cv- 11 01442- PMP, 2012 WL 1574766, at *1 (D. Nev. May 3, 2012). Here, as discussed, 12 Hemingway has filed a state postconviction petition that includes the neuropsychological 13 report in support of ground I(A). The proposed second amended petition only adds 14 additional detail to ground I(A). (See ECF No. 27-1 at 10-17.) It does not appear that 15 Hemingway seeks to amend in bad faith or with undue delay. The Court thus grants the 16 motion to amend. The Court also notes that, as a practical matter, Hemingway likely will 17 need to amend his federal petition after his state proceedings conclude. 18 IV. CONCLUSION 19 It is therefore ordered that Petitioner’s Motion for Leave to Amend (ECF No. 27) is 20 granted. 21 The Clerk of Court is further directed to detach and file the Second Amended 22 Petition (ECF No. 27-1). 23 It is further ordered that Petitioner’s Motion for Stay and Abeyance (ECF No. 25) 24 is granted. 25 It is further ordered that this action is stayed pending final resolution of Petitioner’s 26 state postconviction habeas petition. 27 It is further ordered that the grant of a stay is conditioned upon Petitioner returning 28 to federal court with a motion to reopen the case within 45 days of the issuance of the 1 || remittitur by the state appellate court at the conclusion of the state-court proceedings on 2 || the postconviction habeas petition. 3 It is further ordered that, in light of the stay, Respondents’ Motion to Dismiss (ECF 4 || No. 26) is denied without prejudice as moot. 5 The Clerk of Court is further directed to administratively close this action, until such 6 || time as the Court grants a motion to reopen the matter. 7 DATED THIS 13" Day of May 2025.

9 MIRANDA M. DU 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28