Hobson v. Oliver

• Court: District Court, D. Nevada
• Decided: January 3, 2022
• Docket: 2:20-cv-00503
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 TONY HOBSON, Case No. 2:20-cv-00503-KJD-NJK 5 Petitioner, 6 ORDER v. 7 JERRY HOWELL, et al., 8 Respondents. 9

11 I. SUMMARY 12 This action is a petition for a writ of habeas corpus by Tony Hobson, an individual 13 incarcerated at the Southern Desert Correctional Center, in Las Vegas, Nevada. 14 Hobson is represented by appointed counsel. Respondents have filed a motion to 15 dismiss. The parties have fully briefed the motion to dismiss, as well as a related motion 16 by Hobson for leave to conduct discovery. The Court will grant Respondents’ motion to 17 dismiss in part and deny it in part and will require Hobson to make an election regarding 18 one of his claims. The Court will deny Hobson’s motion for leave to conduct discovery. 19 II. BACKGROUND 20 Hobson was convicted, following a jury trial, in Nevada’s Eighth Judicial District 21 Court (Clark County), of 12 counts of burglary with use of a deadly weapon, 35 counts 22 of robbery with use of a deadly weapon, 13 counts of conspiracy to commit robbery, two 23 counts of attempted robbery, one count of false imprisonment with use of a deadly 24 weapon, two counts of kidnapping with use of a deadly weapon, five counts of false 25 imprisonment, and one count of attempted robbery with use of a deadly weapon. See 26 Judgment of Conviction, Exh. 2 (ECF No. 13-2); Order Affirming in Part and Reversing 27 in Part, Exh. 7, p. 1 (ECF No. 13-7, p. 2). The convictions resulted from a series of 1 robberies of fast-food restaurants between October 28 and November 24, 2014. See 2 Order Affirming in Part and Reversing in Part, Exh. 7, p. 1 (ECF No. 13-7, p. 2). 3 Hobson appealed. See Appellant’s Opening Brief, Exh. 4 (ECF No. 13-4); 4 Appellant’s Reply Brief, Exh. 6 (ECF No. 13-6). The Nevada Supreme Court affirmed in 5 part and reversed in part on October 9, 2017; the court reversed Hobson’s convictions 6 on three of the robbery counts (Counts 25, 39 and 66). See id., pp. 2–11 (ECF No. 13-7, 7 pp. 3–12). 8 On November 13, 2018, Hobson filed a pro se petition for writ of habeas corpus 9 in the state district court, and then, on March 1, 2019, he filed a first amended petition. 10 Petition for Writ of Habeas Corpus (Post-Conviction), Exh. 9 (ECF No. 13-9); First 11 Amended Petition for Writ of Habeas Corpus, Exh. 13 (ECF No. 13-13). The state 12 district court denied Hobson’s petition in a written order filed March 21, 2019. Findings 13 of Fact, Conclusions of Law and Order, Exh. 14 (ECF No. 13-14, pp. 3–31). Hobson 14 appealed. See Appellant’s Informal Brief, Exh. 15 (ECF No. 13-15). The Nevada 15 Supreme Court affirmed the denial of Hobson’s petition on January 24, 2020. Order of 16 Affirmance, Exh. 16 (ECF No. 13-16). 17 This Court received from Hobson a pro se petition for writ of habeas corpus (ECF 18 No. 7), initiating this action, on March 11, 2020. The Court granted Hobson’s motion for 19 appointment of counsel and appointed counsel to represent him. Order entered 20 May 22, 2020 (ECF No. 6). With counsel, Hobson filed a first amended petition for writ 21 of habeas corpus on October 1, 2020 (ECF No. 12). He filed a second amended petition 22 on December 4, 2020 (ECF No. 16), and a third amended petition on April 2, 2021 (ECF 23 No. 22). Hobson’s third amended habeas petition, now his operative petition, includes 24 the following claims:

25 Ground 1: Hobson’s federal constitutional rights were violated because “[t]he police provided material false testimony about how they broke the 26 case.”

27 1 Ground 2: Hobson’s federal constitutional rights were violated because of ineffective assistance of his trial counsel. 2 Ground 2A: Counsel “failed to pursue discovery regarding 3 the police investigation.”

4 Ground 2B: Counsel “failed to exclude the police crime lab’s original DNA report.” 5 Ground 2C: Counsel “failed to present evidence the phones 6 found in Ms. Rankin’s apartment weren’t stolen.”

7 Ground 2D: Counsel “failed to call Detective Flynn regarding the receipts supposedly found at Ms. Rankin’s apartment.” 8 Ground 2E: Counsel “omitted a winning argument from the 9 pre-trial petition for a writ of habeas corpus.”

10 Ground 2F: Counsel “failed to request a complete instruction on accomplice testimony.” 11 Ground 3: Hobson’s federal constitutional rights were violated because 12 “[t]he State and/or Mr. Johns’s attorney committed misconduct in connection with Mr. Johns’s testimony.” 13 Ground 4: Hobson’s federal constitutional rights were violated because 14 “[t]he State presented insufficient evidence to convict Mr. Hobson of kidnapping or its lesser included offenses.” 15 16 Third Amended Petition for Writ of Habeas Corpus (ECF No. 22), pp. 24–39. 17 Respondents filed their motion to dismiss on May 11, 2021 (ECF No. 24), 18 contending Grounds 1, 2A, 2E, 2F and 3 are unexhausted in state court. Hobson filed 19 an opposition to the motion to dismiss (ECF No. 58) and a motion for leave to conduct 20 discovery (ECF No. 32). The parties have fully briefed both motions. See Reply in 21 Support of Motion to dismiss (ECF No. 36); Opposition to Motion for Leave to Conduct 22 Discovery (ECF No. 35); Reply in Support of Motion for Leave to Conduct Discovery 23 (ECF No. 37). 24 III. DISCUSSION 25 A. Exhaustion of State Court Remedies – Legal Standards 26 A federal court may not grant relief on a habeas corpus claim not exhausted in 27 state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of 1 alleged constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To 2 exhaust a claim, a petitioner must fairly present that claim to the highest state court 3 possible and must give that court the opportunity to address and resolve it. See Duncan 4 v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 10 (1992). The “fair presentation” requirement is satisfied when the claim has been 6 presented to the highest available state court by describing the operative facts and the 7 legal theory upon which the federal claim is based. See Anderson v. Harless, 459 U.S. 8 4, 6 (1982); Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982), cert. denied, 463 U.S. 9 1212 (1983). To fairly present a federal constitutional claim to the state court, the 10 petitioner must alert the court to the fact that he asserts a claim under the United States 11 Constitution. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999), cert. denied, 529 12 U.S. 1009 (2000), citing Duncan, 513 U.S. at 365–66. 13 B. Ground 1 14 In Ground 1, Hobson claims that his federal constitutional rights were violated 15 because “[t]he police provided material false testimony about how they broke the case.” 16 Third Amended Petition for Writ of Habeas Corpus (ECF No. 22), pp. 24–26. 17 Respondents argue that this claim is unexhausted in state court. See Motion to Dismiss 18 (ECF No. 24), pp. 9–10. Hobson conceded in his third amended habeas petition that he 19 did not exhaust this claim in state court (see Third Amended Petition for Writ of Habeas 20 Corpus (ECF No. 22), p. 24 (“Mr. Hobson hasn’t fairly presented this claim in state 21 court.”)); however, in response to the motion to dismiss, Hobson has changed his 22 position, and argues that the claim is exhausted. See Opposition to Motion to Dismiss 23 (ECF No. 31), pp. 12–13. Hobson points out that in his original and first amended 24 habeas petitions in state court he asserted a claim based on the same operative factual 25 allegations and the same legal theory. See id.; see also Petition for Writ of Habeas 26 Corpus (Post-Conviction), Exh. 9, pp. 63–65 (ECF No. 13-9, pp. 93–95); First Amended 27 Petition for Writ of Habeas Corpus, Exh. 13, pp. 63– 65 (ECF No. 13-13, pp. 93–95). 1 pro se informal brief. See Appellant’s Informal Brief, Exh. 15, p. 4 (ECF No. 13-15, p. 5) 2 (“Please refer to petitioner’s 1st amended habeas petition on each ground for … Brady 3 violations.”). The Nevada Supreme Court apparently understood Hobson to assert the 4 claim in his brief on appeal, as that court ruled as follows in affirming the denial of the 5 petition:

6 Hobson next raises a number of claims that should have been raised, if at all, on direct appeal. Specifically, he argues … that the State 7 violated Brady v. Maryland, 373 U.S. 83 (1963) … by not producing emails depicting the course of the investigation…. These claims are waived 8 absent a showing of good cause and actual prejudice, which he has not made. 9 10 Order of Affirmance, Exh. 16, p. 10 (ECF No. 13-16, p. 11). 11 This Court, therefore, finds that Hobson did present the claim in Ground 1 to the 12 Nevada Supreme Court, and that it has been exhausted in state court. The Court will 13 deny Respondents’ motion to dismiss with respect to Ground 1. The denial of the 14 motion to dismiss as to Claim 1 will be without prejudice to Respondents asserting in 15 their answer that the claim is barred by the procedural default doctrine. 16 In his motion for leave to conduct discovery (ECF No. 32), Hobson requests 17 leave of court to conduct discovery concerning Ground 1. The discovery that Hobson 18 wishes to conduct goes to the merits of the claim. See Motion for Leave to Conduct 19 Discovery (ECF No. 32). In this order, though, the Court denies the motion to dismiss 20 relative to this claim without need for further factual development. There is no showing 21 of good cause for Hobson to conduct discovery regarding the motion to dismiss this 22 claim. The Court will deny Hobson’s motion for leave to conduct discovery. Hobson 23 may, however, file a new motion for leave to conduct discovery, if factually and legally 24 justified, in conjunction with his reply to Respondents’ answer, as contemplated in the 25 scheduling order entered July 15, 2020 (ECF No. 11). 26 C. Ground 2A 27 In Ground 2A, Hobson claims that his federal constitutional rights were violated 1 pursue discovery regarding the police investigation.” Third Amended Petition for Writ of 2 Habeas Corpus (ECF No. 22), pp. 26–27. This claim is based on much the same factual 3 allegations as the claim in Ground 1, but this is an ineffective assistance of counsel 4 claim. Respondents argue that this claim is unexhausted in state court. See Motion to 5 Dismiss (ECF No. 24), pp. 10–12. In his original and first amended habeas petitions 6 filed in state court, Hobson asserted claims based on the same operative factual 7 allegations and the same legal theory. See Petition for Writ of Habeas Corpus (Post- 8 Conviction), Exh. 9, pp. 37–42, 63–65 (ECF No. 13-9, pp. 67–72, 93–95); First 9 Amended Petition for Writ of Habeas Corpus, Exh. 13, pp. 37–42, 63–65 (ECF No. 13- 10 13, pp. 67–72, 93–95). Hobson subsequently asserted those claims on appeal. See 11 Appellant’s Informal Brief, Exh. 15, pp. 3–4 (ECF No. 13-15, pp. 4–5). The Court, 12 therefore, finds that Hobson did present the claim in Ground 2A to the Nevada Supreme 13 Court, and that it has been exhausted in state court. The Court will deny Respondents’ 14 motion to dismiss with respect to Ground 2A. 15 As with Ground 1, the Court will deny Hobson’s motion for leave to conduct 16 discovery regarding this claim (ECF No. 32). The Court denies the motion to dismiss 17 relative to this claim without need for further factual development. Therefore, there is no 18 showing of good cause for Hobson to conduct discovery regarding the motion to dismiss 19 this claim. Hobson may file a new motion for leave to conduct discovery, if factually and 20 legally justified, in conjunction with his reply to Respondents’ answer, as contemplated 21 in the scheduling order entered July 15, 2020 (ECF No. 11). 22 D. Ground 2E 23 In Ground 2E, Hobson claims that his federal constitutional rights were violated 24 on account of ineffective assistance of his trial counsel because counsel “omitted a 25 winning argument from the pre-trial petition for a writ of habeas corpus.” Third Amended 26 Petition for Writ of Habeas Corpus (ECF No. 22), pp. 34–35. Specifically, Hobson 27 claims that his counsel failed to argue that the grand jury was not properly instructed 1 merely incidental to the robbery. See id. Respondents argue that this claim is 2 unexhausted in state court. See Motion to Dismiss (ECF No. 24), pp. 12–13. Hobson— 3 contrary to his representation in his third amended habeas petition (see Third Amended 4 Petition for Writ of Habeas Corpus (ECF No. 22), p. 26)—concedes that he has not 5 presented this claim in state court. See Opposition to Motion to Dismiss (ECF No. 31), 6 pp. 7–11. 7 Hobson argues, though, that if he were to now present this claim in state court it 8 would be barred by state procedural rules. See id. Under certain circumstances, it is 9 appropriate for a federal court to anticipate a state-law procedural bar of an 10 unexhausted claim, and to treat such a claim as technically exhausted but subject to the 11 procedural default doctrine. See Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) 12 (“An unexhausted claim will be procedurally defaulted, if state procedural rules would 13 now bar the petitioner from bringing the claim in state court.”). In view of the procedural 14 history of this case, and Hobson’s concession, the Court determines that this claim 15 would be ruled procedurally barred in state court if Hobson were now to return to 16 exhaust it. Therefore, the Court considers the claim technically exhausted but subject to 17 application of the procedural default doctrine. See Dickens, 740 F.3d at 1317. 18 A federal court will not review a claim for habeas corpus relief if the decision of 19 the state court denying the claim rested—or, in the case of a technically exhausted 20 claim, would rest—on a state law ground that is independent of the federal question and 21 adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730–31 22 (1991). The Court in Coleman stated the effect of a procedural default as follows:

23 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state 24 procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a 25 result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 26 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). 27 1 To demonstrate cause for a procedural default, the petitioner must “show that some 2 objective factor external to the defense impeded” his efforts to comply with the state 3 procedural rule. Murray, 477 U.S. at 488. In Martinez v. Ryan, 566 U.S. 1 (2012), the 4 Supreme Court ruled that ineffective assistance of post-conviction counsel, or lack of 5 post-conviction counsel, may serve as cause, to overcome the procedural default of a 6 claim of ineffective assistance of trial counsel. 7 The Court, however, determines that the question of the procedural default of this 8 claim will be better resolved after Respondents file an answer and Hobson files a reply, 9 and the issue of the merits of the claim is fully briefed and before the Court. See 10 Opposition to Motion to Dismiss (ECF No. 31), p. 11 (Hobson suggests deferring 11 consideration of question of procedural default of this claim until merits fully briefed); 12 Reply in Support of Motion to Dismiss (ECF No. 36), p. 8 (“At this juncture of the case, 13 Respondents submit that a full analysis of the Martinez elements would be best 14 deferred to the briefing on the answer.”). The Court will, therefore, deny Respondents’ 15 motion to dismiss with respect to this claim, without prejudice to Respondents asserting 16 the procedural default defense to the claim in their answer. 17 E. Ground 2F 18 In Ground 2F, Hobson claims that his federal constitutional rights were violated 19 on account of ineffective assistance of his trial counsel because counsel “failed to 20 request a complete instruction on accomplice testimony.” Third Amended Petition for 21 Writ of Habeas Corpus (ECF No. 22), pp. 35–36. Respondents argue that this claim is 22 unexhausted in state court. See Motion to Dismiss (ECF No. 24), pp. 13–14. In his 23 original and first amended habeas petitions filed in state court, Hobson asserted claims 24 based on the same operative factual allegations and the same legal theory. See Petition 25 for Writ of Habeas Corpus (Post-Conviction), Exh. 9, pp. 71–73 (ECF No. 13-9, pp. 26 102–04); First Amended Petition for Writ of Habeas Corpus, Exh. 13, pp. 71–73 (ECF 27 No. 13-13, pp. 102–04). Hobson subsequently asserted those claims on appeal in his 1 pro se informal brief. See Appellant’s Informal Brief, Exh. 15, pp. 3–4 (ECF No. 13-15, 2 pp. 4–5). The Nevada Supreme Court ruled on the claim on its merits, as follows:

3 Hobson next argues that trial counsel should have challenged the jury instruction regarding corroborating accomplice testimony because it 4 did not instruct the jury that corroboration would be insufficient where it was consistent with a reasonable innocent explanation or showed only an 5 opportunity to commit a crime. Hobson has not shown prejudice because the record contains ample independent corroborating evidence that is 6 inconsistent with a reasonable, innocent explanation and is more inculpatory than establishing mere opportunity to commit a crime. See 7 NRS 175.291(1); Heglemeier v. State, 111 Nev 1244, 1250–51, 903 P.2d 799, 803–04 (1995). The district court therefore did not err in denying this 8 claim without an evidentiary hearing. 9 Order of Affirmance, Exh. 16, p. 7 (ECF No. 13-16, p. 8). 10 This Court, therefore, finds that Hobson did present the claim in Ground 2F to the 11 Nevada Supreme Court, and that it has been exhausted in state court. The Court will 12 deny Respondents’ motion to dismiss with respect to Ground 2F. 13 F. Ground 3 14 In Ground 3, Hobson claims that his federal constitutional rights were violated 15 because “[t]he State and/or Mr. Johns’s attorney committed misconduct in connection 16 with Mr. Johns’s testimony.” Third Amended Petition for Writ of Habeas Corpus (ECF 17 No. 22), pp. 37–38. Respondents argue that the claim in Ground 3 is unexhausted in 18 state court. See Motion to Dismiss (ECF No. 24), p. 10. Hobson concedes as much. 19 See Opposition to Motion to Dismiss (ECF No. 31), p. 14 (“Mr. Hobson agrees this claim 20 is unexhausted.”). 21 With respect to this claim, Hobson goes on to argue as follows:

22 The Nevada state courts might conceivably consider this claim in an otherwise untimely and successive petition because it relies on new 23 evidence—a declaration from Mr. Johns signed on March 29, 2021. Because this claim wasn’t reasonably available until March 29, the 24 Nevada courts might find good cause for Mr. Hobson to litigate the claim now. See, e.g., Clem v. State, 119 Nev. 615, 621, 81 P.3d 521, 525 25 (2003) (explaining that if “the factual or legal basis for a claim was not reasonably available at the time of any default,” the petitioner may be 26 able to raise the new claim in an otherwise untimely and successive petition). For that reason, Mr. Hobson will likely seek a stay of these 27 federal proceedings so he can litigate Ground Three in state court. 1 With respect to the unexhausted claim in Ground 3, then, the Court will require 2 Hobson to make an election, to either abandon the claim or move for a stay of this 3 action so that he may return to state court to exhaust the claim. If Hobson does not elect 4 one of those options within the time allowed, this action will be dismissed in its entirety 5 pursuant to Rose v. Lundy, 455 U.S. 509 (1982). 6 IV. CONCLUSION 7 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 8 24) is GRANTED IN PART AND DENIED IN PART. The Court determines that the 9 claim in Ground 3 of Petitioner’s Third Amended Petition for Writ of Habeas Corpus 10 (ECF No. 22) is unexhausted in state court, and the Court will require Petitioner to make 11 an election with respect to that unexhausted claim as described below; in all other 12 respects, Respondents’ Motion to Dismiss is denied. 13 IT IS FURTHER ORDERED that, within 20 days from the date of this order, 14 Hobson must file either: (1) a notice stating that he abandons Ground 3 of his third 15 amended habeas petition, or (2) a motion for a stay of this action while he exhausts the 16 claim in Ground 3 in state court. If Hobson takes neither of those actions within the time 17 allowed, this action will be dismissed in its entirety pursuant to Rose v. Lundy, 455 U.S. 18 509 (1982). 19 IT IS FURTHER ORDERED that, if Petitioner abandons Ground 3 of his third 20 amended habeas petition, Respondents will have 90 days from the filing of the notice of 21 abandonment of that claim to file an answer, responding to all Petitioner’s remaining 22 claims. 23 IT IS FURTHER ORDERED that, if Petitioner files a motion for stay, 24 Respondents will have 20 days to respond to that motion, and then Petitioner will have 25 15 days to file a reply. 26 IT IS FURTHER ORDERED that, in all other respects, the schedule for further 27 proceedings set forth in the order entered July 15, 2020 (ECF No. 11) will remain in 1 IT IS FURTHER ORDERED that Petitioner’s Motion for Leave to Conduct 2 || Discovery (ECF No. 32) is DENIED. 3 4 DATED THIS dayof_ January , 2022 ) on

KENT J. DAWSON 7 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