3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 THOMAS WRAY HERNDON, Case No. 3:20-cv-00489-ART-CLB
6 Petitioner, ORDER v. 7 DWIGHT NEVEN1, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Respondents’ Motion to Dismiss 11 (ECF No. 48). For the reasons discussed below, Respondents’ motion is granted, 12 in part, and denied, in part, without prejudice. 13 I. Background 14 Petitioner challenges a 2015 judgment and conviction imposed by the 15 Second Judicial District Court of Washoe County. (ECF No. 45-47.) A jury found 16 Petitioner guilty of eight counts of sexual assault on a child and two counts of 17 lewdness with a child under the age of fourteen. (Id.) The state court entered a 18 judgment of conviction on June 11, 2015, and sentenced Petitioner to an 19 aggregate term of 90 years to life. (Id.) Petitioner appealed, and the Nevada 20 Supreme Court affirmed the judgment of conviction. (ECF No. 46-30.) The Nevada 21 22
23 1 The state corrections department’s inmate locator page indicates that Petitioner is incarcerated at the Lovelock Correctional Center (“LCC”). See 24 https://ofdsearch.doc.nv.gov/form.php (retrieved February 2023 under identification number 1141105). The department’s website reflects that Tim 25 Garrett is the warden of that facility. See https://doc.nv.gov/Facilities/LCC_Facility/ (retrieved February 2023). At the end 26 of this order, the Court directs the Clerk of the Court to substitute Petitioner’s 27 current immediate physical custodian, Tim Garrett, as Respondent for the prior Respondent Dwight Neven pursuant to Rule 25(d) of the Federal Rules of Civil 28 Procedure. 1 Supreme Court denied the petition for rehearing on July 27, 2017, and remittitur 2 issued on August 22, 2017. (ECF Nos. 46-33, 46-34.) 3 On August 24, 2018, Petitioner sought post-conviction relief in a state 4 petition for writ of habeas corpus. (ECF No. 46-41.) Following appointment of 5 counsel, Petitioner requested two extensions of time to file a supplement to his 6 state petition, which the state court granted. (ECF Nos. 47-5, 47-6, 47-7.) 7 Petitioner requested a third extension of time to file a supplement to his state 8 petition. (ECF No. 47-8.) The state court denied the third request for extension 9 and dismissed his petition finding it procedurally barred because he filed his 10 petition more than one year after the issuance of remittitur and did not 11 demonstrate good cause for the delay. (ECF No. 47-9.) The Nevada Court of 12 appeals affirmed the dismissal of his state habeas petition. (ECF No. 47-27.) 13 On August 26, 2020, Petitioner initiated this federal habeas proceeding pro 14 se. (ECF No. 1.) The Court appointed counsel and granted leave to amend the 15 petition. (ECF No. 11.) Petitioner filed a first amended petition raising seven 16 grounds for relief. (ECF No. 32.) Respondents move to dismiss the petition as 17 untimely and Grounds 5, 6, and 7 as unexhausted. (ECF No. 48.) Petitioner 18 concedes that Grounds 6 and 7 were not presented to the Nevada state courts, 19 but he argues that they are technically exhausted, and he can overcome the 20 procedural default because his post-conviction counsel was ineffective. (ECF No. 21 58.) 22 II. Discussion 23 a. Timeliness 24 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a 25 one-year limitation period for state prisoners to file a federal habeas petition 26 pursuant to 28 U.S.C. § 2254. The one-year limitation period, i.e., 365 days, 27 begins to run from the latest of four possible triggering dates, with the most 28 common being the date on which the petitioner’s judgment of conviction became 1 final by either the conclusion of direct appellate review or the expiration of the 2 time for seeking such review. Id. § 2244(d)(1)(A). The AEDPA limitations period is 3 tolled while a “properly filed” state post-conviction proceeding, or other collateral 4 review is pending. 28 U.S.C. § 2244(d)(2). However, an untimely state petition is 5 not “properly filed” and thus does not toll the federal statute of limitations. Pace 6 v. DiGuglielmo, 544 U.S. 408, 417 (2005). No statutory tolling is permitted for the 7 time that a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 8 181–82 (2001). 9 Petitioner’s conviction became final after the Nevada Supreme Court denied 10 rehearing on direct appeal and the time expired for filing a petition for writ of 11 certiorari with the United States Supreme Court on October 25, 2017. The AEDPA 12 statute of limitations began running the following day. Absent another basis for 13 tolling or delayed accrual, the AEDPA deadline expired 365 days later on October 14 26, 2018. 15 Petitioner filed his state petition on August 24, 2018, two days after the 16 deadline to file his state petition under N.R.S. § 34.726(1).2 The state court 17 dismissed the state petition finding it procedurally barred because he filed his 18 petition more than one year after the issuance of remittitur and did not 19 demonstrate good cause for the delay. (ECF No. 47-9.) Because the state petition 20 was not timely under Nevada law, it was not “properly filed” for the purposes of 21 tolling the AEDPA deadline. See Pace, 544 U.S. at 417. Therefore, without another 22 basis for tolling or delayed accrual, the AEDPA deadline expired on October 26, 23 2018, and Petitioner’s federal petition, filed 1 year and 10 months later, is time- 24 2 N.R.S. § 34.726(1) sets the deadline to file a state habeas petition as follows: 25 [A] petition that challenges the validity of a judgment or sentence 26 must be filed within 1 year after entry of the judgment of conviction 27 or, if an appeal has been taken from the judgment, within 1 year after the appellate court . . . issues its remittitur. 28 1 barred. 2 The parties agree that Petitioner filed his federal petition after the one-year 3 limitation period under AEDPA expired. Petitioner argues that he can overcome 4 any procedural or timeliness bars because he is entitled to equitable tolling. 5 Specifically, Herndon maintains that he diligently pursued habeas relief in state 6 and federal court, but that extraordinary circumstances, including a mental 7 impairment and effectively being abandoned by his direct appeal attorney, made 8 him unable on his own to timely file his state post-conviction relief and, as a 9 result, his federal habeas relief. Without offering any countervailing evidence, 10 Respondents argue that Petitioner fails to show that his level of impairment and 11 any attorney misconduct entitle him to equitable tolling. Petitioner requests an 12 evidentiary hearing to resolve any factual issues and develop the record on his 13 claim of equitable tolling. 14 b. Equitable Tolling 15 The one-year period of limitation of 28 U.S.C. § 2244(d)(1) is subject to 16 equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010). “[A] ‘petitioner’ 17 is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his 18 rights diligently, and (2) that some extraordinary circumstance stood in his way’ 19 and prevented timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 20 408, 418 (2005)). Equitable tolling does not stop the limitations clock the way 21 that statutory tolling does. 22 “First, for a litigant to demonstrate ‘he has been pursuing his rights 23 diligently,’ Holland, 560 U.S. at 649 [...], and thus satisfies the first element 24 required for equitable tolling, he must show that he has been reasonably diligent 25 in pursuing his rights not only while an impediment to filing caused by an 26 extraordinary circumstance existed, but before and after as well, up to the time 27 of filing his claim in federal court.” Smith v. Davis, 953 F.3d 582, 598- 28 99 (9th Cir. 2020) (en banc), cert. denied, 141 S. Ct. 878 (2020). “[I]t is not 1 enough for a petitioner seeking an exercise of equitable tolling to attempt 2 diligently to remedy his extraordinary circumstances; when free from the 3 extraordinary circumstance, he must also be diligent in actively pursuing his 4 rights.” Id. at 599. “Second, and relatedly, it is only when an extraordinary 5 circumstance prevented a petitioner acting with reasonable diligence from 6 making a timely filing that equitable tolling may be the proper remedy.” Id. 7 Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d 8 1104, 1107 (9th Cir. 1999), and “the threshold necessary to trigger equitable 9 tolling is very high, lest the exceptions swallow the rule,” Miranda v. Castro, 292 10 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 11 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on 12 this “extraordinary exclusion.” Id. at 1065. He accordingly must demonstrate a 13 causal relationship between the extraordinary circumstance and the lateness of 14 his filing. See, e.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 15 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 16 2007). “[I]t is only when an extraordinary circumstance prevented a petitioner 17 acting with reasonable diligence from making a timely filing that equitable tolling 18 may be the proper remedy.’” Smith, 953 F.3d at 600. 19 Equitable tolling, though unavailable in most cases, requires a fact- 20 intensive analysis that may involve the confluence of numerous factors. Lott v. 21 Mueller, 304 F.3d 918, 923-924 (9th Cir. 2002). Although Petitioner is not 22 required to carry his burden of persuasion at the pleading stage, equitable tolling 23 issues are highly fact-dependent and he must, therefore, allege sufficient facts 24 that would, if true, entitle him to equitable tolling. See Orthel v. Yates, 795 F.3d 25 935, 940 (9th Cir. 2015). In holding that mental impairment can constitute 26 grounds for equitable tolling, the Ninth Circuit has recognized the importance of 27 developing the record and instructed that a court's assessment of equitable 28 tolling must be guided by a “flexible, totality-of-the-circumstances approach.” See 1 Forbess v. Franke, No. 12–35843, 749 F.3d 837, 842 (9th Cir. 2014); see also 2 Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (reversing dismissal of 3 federal habeas petition due to district court’s failure to develop the record in 4 response to the petitioner’s claim of mental incompetency). Because a court must 5 consider the totality of circumstances, equitable tolling due to mental impairment 6 is not foreclosed by the fact the petitioner was represented by counsel and any 7 misconduct by counsel, including alleged abandonment, may be considered as 8 an extraordinary circumstance. See Milam v. Harrington, 953 F.3d 1128 (9th Cir. 9 2020) (reversing dismissal of federal habeas petition and remanding for further 10 consideration of statutory and equitable tolling). 11 i. Mental Impairment 12 Petitioner argues that he is entitled to 669 days of equitable tolling because 13 he was unable to understand the need to timely file his state petition on August 14 22, 2018, due to his intellectual disability. (ECF No. 58 at 12-13.) Petitioner 15 “likely discerned that the relevant date of remittitur on direct appeal as August 16 22, 2017,” but “his mental impairments made him unable to understand the need 17 to file, not mail, the petition on August 22, 2018.” (Id. at 13.) He further asserts 18 that his federal petition was prepared by his state post-conviction attorney and 19 Petitioner mailed his federal petition based on that attorney’s instructions. (Id. at 20 13.) 21 To obtain equitable tolling because of mental impairment: 22 (1) First, a petitioner must show his mental impairment was an “extraordinary circumstance” beyond his control by 23 demonstrating the impairment was so severe that either
24 a. Petitioner was unable to rationally or factually understand the need to timely file, or 25 b. Petitioner’s mental state rendered him unable personally to 26 prepare a habeas petition and effectuate its filing.
27 (2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental 28 impairment made it impossible to meet the filing deadline under 1 access to assistance. 2 Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010). 3 To support his claim that he meets the first prong of the Bills test, Petitioner 4 relies on a 2015 pretrial psychological evaluation prepared by Dr. Mahaffey, who 5 evaluated Petitioner in September 2014. (ECF No. 59-1.) Dr. Mahaffey noted that 6 Petitioner met the criteria for “Borderline Intellectual Functioning,” meaning he 7 was “below average in intelligence but not intellectually disabled (formerly known 8 as mentally retarded).” (Id. at 7.) Dr. Mahaffey also found that he met the criteria 9 for “Specific Learning Disability.” (Id. at 7.) While concluding that Petitioner had 10 a full-scale IQ score of 79 (id. at 7), Dr. Mahaffrey noted that he was “extremely 11 low, fifth grade” in spelling (id. at 3), “at a grade equivalency of 6th to 8th grade” 12 overall in reading, spelling, and math skills (id. at 7), and in special education 13 from Kindergarten to twelfth grade (id. at 7). Dr. Mahaffrey’s report noted that 14 while in the U.S. Navy “they discovered he could not read” and “put him in a 15 program,” and he later succeeded educationally because he is “mechanically 16 inclined.” (Id. at 4.) 17 A critically important question is whether Petitioner still suffered from this 18 mental impairment when he should have filed his federal petition or a protective 19 petition. Petitioner relies on a 2022 psychological evaluation prepared by Dr. 20 Leany. (ECF No. 59-5.) Dr. Leany opined that Petitioner still suffered from an 21 intellectual disability that would impede his ability to timely file a petition and 22 “struggles with executive functioning tasks, including working and immediate 23 memory.” (Id. at 6-7.) Dr. Leany concluded that Petitioner’s “executive functioning 24 deficits most likely impaired his ability to file his petition in a timely manner.” (Id. 25 at 7.) 26 Respondents mine Dr. Leany’s evaluation to support their argument that 27 Petitioner is not entitled to equitable tolling and did not suffer from a mental 28 impairment during the relevant time period. Respondents point to Dr. Leany’s 1 notes that Petitioner honorably served in the military, enjoys reading, and 2 previously lived independently, including paying his bills, suggesting he 3 understands deadlines. These facts about Petitioner fail to materially undermine 4 Dr. Leany’s own conclusions that Petitioner suffers from “specific deficits in visual 5 related tasks as well as executive function abilities. The latter deficits are most 6 evident when task complexity increases. . .” (Id. at 7.) Though Respondents offer 7 no countervailing evidence to rebut Petitioner’s allegations, their arguments 8 highlight that the facts are disputed and could be further developed. 9 ii. Attorney Abandonment 10 In addition to mental impairment, Petitioner claims that his direct appeal 11 counsel effectively abandoned him. “Equitable tolling may be warranted in 12 instances of unprofessional attorney behavior; however, the AEDPA deadline will 13 not be tolled for a garden variety claim of excusable attorney neglect or 14 mistake.” Doe v. Busby, 661 F.3d 1001, 1011-12 (9th Cir. 2011) (citing Spitsyn, 15 345 F.3d at 800-02). The attorney's misconduct must be “a sufficiently 16 egregious misdeed like malfeasance or failing to fulfill a basic duty of client 17 representation” to warrant equitable tolling. Id. at 1012 (citing Spitsyn, 345 F.3d 18 at 801). Petitioner argues that his direct appeal attorney, Thomas Qualls 19 (“Qualls”), effectively abandoned him because Qualls’s office only sent two letters 20 to Petitioner. (ECF No. 58 at 14.) The state court informed Petitioner that Qualls 21 was his attorney of record in October 2017 but did not inform Petitioner that his 22 direct appeal proceedings had concluded. (Id.) Qualls withdrew as counsel in 23 April 2018. (Id.) Petitioner asserts that there is no indication in the record that 24 Qualls sent Petitioner a notice of withdrawal or informed Petitioner as to how 25 much time he had to file a state petition. (Id.) 26 Respondents argue that Petitioner fails to provide evidence demonstrating 27 when he learned that his direct appeal concluded, and that Petitioner seems to 28 concede that he learned of the Nevada Supreme Court’s denial on direct appeal 1 at some point in 2018. (ECF No. 65 at 4-5.) They assert that as Petitioner filed a 2 state petition in August 2018, he could have similarly filed a federal protective 3 petition. (Id.) Petitioner does not address what circumstances or combination of 4 circumstances precluded him from filing a federal petition, especially after the 5 state district court ruled in July 2019 that his state post-conviction petition was 6 untimely. At that point, Petitioner was represented by court-appointed counsel, 7 who appealed the ruling to the Nevada Supreme but did not file a federal 8 protective habeas petition. 9 The fact that Petitioner was represented during phases of his state post- 10 conviction proceedings does not preclude equitable tolling. See Malim, 953 F.3d 11 at 1132 (citing Bills, 628 F.3d at 1099 (observing that equitable tolling for mental 12 impairment is available in “myriad circumstances,” including cases with 13 petitioners employing counsel)). In Malim, the petitioner claimed equitable tolling 14 based on mental impairment and attorney misconduct that appeared to fall short 15 of “true abandonment.” Id. at 1134 (citing Luna v. Kernan, 784 F.3d 640, 648 16 (9th Cir. 2015)). The court in Malim acknowledged that the petitioner’s mental 17 impairment may have prevented the petitioner from monitoring his state habeas 18 lawyer in a way that could have prevented the late filing of his federal petition. 19 Id. at 1133. Here the facts are disputed and could be developed to allow the Court 20 to consider Petitioner’s claim of equitable tolling in light of all the circumstances. 21 iii. Diligence 22 Although Herndon has alleged that he was reasonably diligent in pursuing 23 his rights, there remains a question of whether he was reasonably diligent in 24 pursuing federal habeas relief. “The diligence required for equitable tolling 25 purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’” Holland, 26 560 U.S. at 653. 27 In determining whether reasonable diligence was exercised courts 28 shall consider the petitioner's overall level of care and caution in light 1 made in other similar cases with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant 2 special treatment in an appropriate case. 3 Smith, 953 F.3d at 599 (internal punctuation and citations omitted). While 4 abandonment by an attorney may, in certain circumstance, constitute an 5 “extraordinary circumstance,” the attorney's actions alone cannot satisfy the 6 separate and distinct requirement that a defendant demonstrate diligence. See, 7 e.g., United States v. Buckles, 647 F.3d at 890. In Holland v. Florida, 560 U.S. 8 631, 652 (2010) (finding that despite his attorney’s failings, petitioner acted 9 diligently in pursuing federal habeas relief). 10 While Herndon diligently pursued his state post-conviction rights, it is 11 unclear on the existing record why he failed to file his federal petition any sooner. 12 Petitioner does not allege a date or range of dates demonstrating when he learned 13 that his direct appeal concluded other than a vague assertion that “there is no 14 indication that [Petitioner] even knew that the direct appeal proceedings 15 concluded until sometime in 2018.” (ECF No. 58 at 14.) Herndon may not have 16 known that his state post-conviction petition was untimely (by just two days) 17 when he filed it in August 2018, but would have learned this when the state court 18 ruled it to be untimely in July 2019. Although Herndon diligently appealed to the 19 Nevada Supreme Court and, when that appeal was rejected, promptly filed his 20 federal habeas petition. As Respondents point out, although Petitioner was at 21 times represented by counsel, at no point did he file a protective federal petition. 22 iv. Evidentiary Hearing 23 In assessing an equitable tolling claim based on mental impairment, the 24 Court must take care not to deny a request for equitable tolling before a sufficient 25 record can be developed. The Court grants Petitioner’s request for an evidentiary 26 hearing on equitable tolling because he has alleged facts which, if true, could 27 entitle him to equitable tolling or would at least allow the court to consider the 28 issue in light of all the facts, including alleged misconduct by counsel. The Court 1 will set a schedule for the parties to meet and confer to submit a joint proposed 2 prehearing scheduling order. 3 c. Exhaustion 4 A state prisoner first must exhaust state court remedies on a habeas claim 5 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This 6 exhaustion requirement ensures that the state courts, as a matter of comity, will 7 have the first opportunity to address and correct alleged violations of federal 8 constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). 9 “A petitioner has exhausted his federal claims when he has fully and fairly 10 presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th 11 Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999). To satisfy 12 the exhaustion requirement, a claim must have been raised through one complete 13 round of either direct appeal or collateral proceedings to the highest state court 14 level of review available. O’Sullivan, 526 U.S. at 844–45; Peterson v. Lampert, 319 15 F.3d 1153, 1156 (9th Cir. 2003) (en banc). A properly exhausted claim “‘must 16 include reference to a specific federal constitutional guarantee, as well as a 17 statement of the facts that entitle the petitioner to relief.’” Woods, 764 F.3d at 18 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)); Castillo v. 19 McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both the 20 operative facts and federal legal theory upon which a claim is based). 21 A state appellate court decision on the merits of a claim of course exhausts 22 the claim. E.g., Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir. 2015). “In 23 the exhaustion context, the Supreme Court has admonished lower courts that 24 the complete exhaustion requirement is not intended to ‘trap the unwary pro se 25 prisoner’.” Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (quoting Slack 26 v. McDaniel, 529 U.S. 473, 487 (2000) (rejecting argument that petitioner should 27 be limited to claims in an initial federal petition after returning to federal court 28 from state exhaustion proceedings)). “More generally, the Court has held pro se 1 pleadings to a less stringent standard than briefs by counsel and reads pro se 2 pleadings generously, ‘however inartfully pleaded.’” Id. (quoting Haines v. Kerner, 3 404 U.S. 519, 520 (1972) (per curiam)). A claim is not exhausted unless the 4 petitioner has presented to the state court the same operative facts and legal 5 theory upon which his federal habeas claim is based. Bland v. California Dept. of 6 Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). 7 A federal court may not entertain a habeas petition unless the petitioner 8 has exhausted all available and adequate state court remedies for all claims in 9 the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed petition” 10 containing both exhausted and unexhausted claims is subject to dismissal. Id. 11 Respondents request dismissal of the petition as a mixed petition. (ECF No. 48 at 12 7.) Although resolution of the equitable tolling issue is pending further factual 13 development, the Court addresses the parties’ exhaustion arguments to facilitate 14 the federal interest in efficiency, or “streamlining federal habeas proceedings,” as 15 AEDPA’s exhaustion requirement is designed to reduce “piecemeal litigation.” 16 Rhines v. Weber, 544 U.S. 269, 277 (2005). 17 i. Ground 5 18 In Ground 5, Petitioner alleges that trial counsel rendered ineffective 19 assistance for failure to move to suppress Petitioner’s statements to Detective 20 Nauman. (ECF No. 32 at 17-18.) Respondents argue that Petitioner failed to 21 present this claim to the Nevada appellate court. (ECF No. 48 at 8.) In response, 22 Petitioner asserts that Ground 5 is exhausted because he argued on appeal that 23 the district court erroneously dismissed the petition as untimely and erroneously 24 found both claims could have been raised on direct appeal. (ECF No. 58 at 17- 25 18.) 26 Petitioner did not present this claim to the Nevada appellate courts and the 27 Nevada appellate courts did not present a decision on the merits of the claim. 28 Accordingly, the claim as alleged in Ground 5 is unexhausted. 1 ii. Grounds 6 and 7 2 Petitioner appears to concede that Grounds 6 and 7 were not presented to 3 the state courts. (ECF No. 58 at 18-21.) He argues the claims are technically 4 exhausted, but procedurally defaulted and he can demonstrate cause and 5 prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), to overcome the procedural 6 default. (Id.) 7 A federal court need not dismiss a claim on exhaustion grounds if it is clear 8 that the state court would find the claim procedurally barred. See Castille v. 9 Peoples, 489 U.S. 346, 351 (1989); see also Dickens v. Ryan, 740 F.3d 1302, 1317 10 (9th Cir. 2014) (en banc) (“An unexhausted claim will be procedurally defaulted, 11 if state procedural rules would now bar the petitioner from bringing the claim in 12 state court.”). A claim may be considered procedurally defaulted if “it is clear that 13 the state court would hold the claim procedurally barred.” Sandgathe v. Maass, 14 314 F.3d 371, 376 (9th Cir. 2002). Where a petitioner has “procedurally 15 defaulted” a claim, federal review is barred unless he “can demonstrate cause for 16 the default and actual prejudice as a result of the alleged violation of federal law.” 17 Coleman v. Thompson, 501 U.S. 722,750 (1991). 18 “Generally, post-conviction counsel’s ineffectiveness does not qualify as 19 cause to excuse a procedural default.” Ramirez v. Ryan, 937 F.3d 1230, 1241 20 (9th Cir. 2019) (citing Coleman, 501 U.S. at 754-55). However, in Martinez v. 21 Ryan, the Supreme Court created a narrow exception to the general rule that 22 errors of post-conviction counsel cannot provide cause for a procedural default. 23 See 566 U.S. 1, 16-17 (2012). “Under Martinez, the procedural default of a 24 substantial claim of ineffective assistance of trial counsel is excused, if state law 25 requires that all claims be brought in the initial collateral review proceeding ... 26 and if in that proceeding there was no counsel or counsel was ineffective.” 27 Ramirez, 937 F.3d at 1241 (citing Martinez, 566 U.S. at 17). Nevada law requires 28 prisoners to raise ineffective assistance of counsel (“IAC”) claims for the first time 1 in a state petition seeking post-conviction review, which is the initial collateral 2 review proceeding for the purposes of applying the Martinez rule. See Rodney v. 3 Filson, 916 F.3d 1254, 1259-60 (9th Cir. 2019). 4 Here, it is clear that Petitioner would face multiple procedural bars if he 5 were to return to state court with his unexhausted claims. See, e.g., NRS 34.726, 6 34.810. However, Nevada procedural bars can be excused with a showing of 7 cause and prejudice or a fundamental miscarriage of justice (i.e., actual 8 innocence), which are substantially the same as the federal standards. If a 9 petitioner has a potentially viable cause-and-prejudice or actual-innocence 10 argument under the substantially similar federal and state standards, then the 11 petitioner cannot firmly establish that “the state court would hold the claim 12 procedurally barred.” Sandgathe, 314 F.3d at 376. A different situation is 13 presented, however, where the Nevada courts do not recognize a potential basis 14 to overcome the procedural default arising from the violation of a state procedural 15 rule. 16 Accordingly, a Nevada habeas petitioner who can rely upon Martinez, and 17 only Martinez, as a basis for overcoming a state procedural bar on an 18 unexhausted claim can successfully argue that the state courts would hold the 19 claim procedurally barred but that she nonetheless has a potentially viable 20 cause-and-prejudice argument under federal law that would not be recognized by 21 the state courts when applying the state procedural bars. 22 In the present case, Petitioner has invoked Martinez to overcome a 23 procedural default of the unexhausted ineffective assistance of trial counsel 24 claims in Grounds 6 and 7. It appears that Petitioner has no other potentially 25 viable bases for demonstrating cause and prejudice that might be recognized by 26 the state courts and that thus would preclude a finding of technical exhaustion 27 by procedural default as to the unexhausted claim. 28 The Court shall defer an analysis of cause and prejudice under Martinez of 1 Grounds 6 and 7 until after the filing of an answer and reply that address both 2 cause and prejudice and the claims on the merits. The Court may then have the 3 benefit of its analysis of a full factual and legal presentation as to all relevant 4 claims.3 Accordingly, Respondents’ motion is denied without prejudice as to 5 Grounds 6 and 7. Respondents may renew their procedural default arguments in 6 their answer. 7 III. Petitioner’s Options Regarding Unexhausted Claim 8 In the instant case, the Court concludes that the ineffective assistance of 9 counsel claim alleged in Ground 5 is unexhausted. Petitioner did not argue that 10 he can demonstrate cause and prejudice under Martinez as to Ground 5. Because 11 the Court finds that the petition contains unexhausted claims, Petitioner has 12 these options: 13 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claim in his federal habeas petition, and 14 proceed only on the exhausted claims;
15 2. He may return to state court to exhaust his unexhausted claims, in which case his federal habeas petition will be denied 16 without prejudice;4 or
17 3. He may file a motion asking this court to stay and abey his exhausted federal habeas claims while he returns to state 18 court to exhaust his unexhausted claims. 19 With respect to the third option, a district court has discretion to stay a petition 20
21 3 The Court notes that the action taken herein is premised upon Petitioner having a potentially viable cause and prejudice argument based upon Martinez, and only 22 Martinez, as opposed to having also potentially viable cause and prejudice 23 arguments based upon grounds that the state courts would recognize. If Petitioner begins arguing any such additional cause and prejudice arguments 24 herein, that immediately will “kick” this case back into a procedural posture where the next step instead is dictated by Rose v. Lundy and its progeny. That is, 25 the Court’s action is taken on the premise that the unexhausted claims are 26 technically exhausted by procedural default because Petitioner has no potentially viable cause and prejudice (or actual innocence) arguments that the state courts 27 would recognize as a basis for overcoming the state procedural bars.
28 4 This Court makes no assurances as to the timeliness of any future-filed petition. 1 that it may validly consider on the merits. Rhines, 544 U.S. at 276. The Rhines 2 Court stated: 3 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a 4 petitioner’s failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines 5 there was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for 6 that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. 7 Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the 8 applicant to exhaust the remedies available in the courts of the State”). 9 544 U.S. at 277. 10 If Petitioner wishes to ask for a stay, he must file a motion for stay and 11 abeyance in which he demonstrates good cause for his failure to exhaust his 12 unexhausted claims in state court and presents argument regarding the question 13 of whether or not his unexhausted claims are plainly meritless. Respondents 14 would then be granted an opportunity to respond, and Petitioner to reply. Or 15 Petitioner may file a declaration voluntarily abandoning his unexhausted claims, 16 as described above. Petitioner’s failure to choose any of the three options listed 17 above, or seek other appropriate relief from this court, will result in his federal 18 habeas petition being dismissed. Petitioner is advised to familiarize himself with 19 the limitations periods for filing federal habeas petitions contained in 28 U.S.C. 20 § 2244(d), as those limitations periods may have a direct and substantial effect 21 on whatever choice he makes regarding his petition. 22 IV. Conclusion 23 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 48) is 24 granted, in part, and denied, in part, as follows: 25 1. Ground 5 is unexhausted. 26 2. Respondents’ request to dismiss Grounds 6 and 7 is denied without 27 prejudice. A decision on whether Petitioner can demonstrate cause and 28 1 prejudice under Martinez as to Grounds 6 and 7 is deferred until the 2 time of merits review. Respondents may reassert the procedural default 3 arguments with respect of those claims in their answer. 4 It is further ordered that Petitioner shall have 30 days to either: (1) inform 5 this court in a sworn declaration that he wishes to formally and forever abandon 6 the unexhausted Ground 5 for relief in his federal habeas petition and proceed 7 on the exhausted grounds; OR (2) inform this court in a sworn declaration that 8 he wishes to dismiss this petition without prejudice in order to return to state 9 court to exhaust his unexhausted grounds; OR (3) file a motion for a stay and 10 abeyance, asking this court to hold his exhausted grounds in abeyance while he 11 returns to state court to exhaust his unexhausted grounds. If Petitioner chooses 12 to file a motion for a stay and abeyance, or seek other appropriate relief, 13 respondents may respond to such motion as provided in Local Rule 7-2. 14 It is further ordered that Respondents’ motion to dismiss the petition as 15 untimely is denied without prejudice for the parties to address equitable tolling 16 issues at an evidentiary hearing. 17 It is further ordered that counsel for Petitioner and counsel for 18 Respondents are to meet and confer regarding the terms of a prehearing 19 scheduling order and within 30 days of the date of this order and file a joint 20 proposed prehearing scheduling order that: 21 1. Proposes three possible hearings dates and indicates the expected 22 length of the hearing; 23 2. Sets an agreed upon schedule for necessary preparation for and 24 exchange of information in advance of the evidentiary hearing, including 25 disclosure of exhibit and witness lists, including any expert materials 26 and reports; 27 3. Anticipates that each party will file seven days before the hearing 28 witness lists, exhibits lists, and hearing briefs (limited to 30 pages); 1 4. Anticipates that each party will file party will file closing briefs (limited 2 to 30 pages) 30 days after their receipt of the transcript of the hearing; 3 5. Anticipates that necessary arrangements will be made so that Petitioner 4 will attend the hearing in person; and 5 6. Identifies any matter upon which the parties cannot agree, with a brief 6 description of the issue and the parties’ positions. 7 || After the parties submit the joint proposed scheduling order, the Court will 8 || schedule the hearing and either approve the prehearing scheduling order 9 || proposed by the parties or issue a different prehearing scheduling order. The 10 || court will set a status conference one week prior to the hearing. 11 It is further ordered that the Clerk of the Court is directed to substitute 12 || Tim Garrett for Respondent Dwight Neven. 13 14 DATED THIS 30th day of March 2023. 15 16 Poe jlossed iden 7 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28