Ivan Cotton v. John Henley

• Court: District Court, D. Nevada
• Decided: May 15, 2026
• Docket: 3:23-cv-00570
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 IVAN COTTON, Case No. 3:23-cv-00570-MMD-CSD

7 Petitioner, ORDER v. 8

9 JOHN HENLEY,1

10 Respondent.

11 12 I. SUMMARY 13 Petitioner Ivan Cotton, a Nevada prisoner, has filed a First-Amended Petition for 14 Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 23 (“First-Amended Petition”).) 15 Before the Court is Respondent’s motion to dismiss the First-Amended Petition. (ECF No. 16 35 (“Motion”).) Cotton opposed the Motion, and Respondent replied. (ECF Nos. 49, 55.) 17 For the reasons discussed below, the Court grants the Motion in part. 18 II. BACKGROUND 19 The Nevada Supreme Court detailed the facts presented at Cotton’s trial as 20 follows:

21 The record shows that while sitting in the driver’s seat of her car, the victim was shot six times in her right torso by a handgun registered to Cotton, 22 which was in his possession earlier in the day. Cotton and the victim were romantically involved. Leading up to the murder, witnesses testified that the 23 couple were quarreling and the relationship was ending. During a phone conversation, Cotton and the victim agreed to meet at a nearby park to 24 discuss their relationship. Approximately two minutes later Cotton called 9- 25 1According to the state corrections department’s inmate locator page, Cotton is 26 incarcerated at Northern Nevada Correctional Center. John Henley is the current warden. Accordingly, at the end of this Order, the Court kindly requests the Clerk of Court 27 1-1 to report the victim had shot herself. When law enforcement arrived, no 1 one else was present and Cotton told the officers to, “put me in cuffs” and “just take me to jail.” 2 (ECF No. 38-7 at 4.) 3 A jury found Cotton guilty of first-degree murder with the use of a deadly weapon. 4 (ECF No. 37-6.) Cotton was sentenced to life in prison without the possibility of parole. 5 (Id.) His judgment of conviction was entered on October 23, 2018. (Id.) Cotton appealed, 6 and the Nevada Supreme Court affirmed on February 5, 2020. (ECF No. 38-7.) Remittitur 7 issued on March 2, 2020. (ECF No. 38-8.) 8 Cotton filed a state habeas petition on March 2, 2021. (ECF No. 38-11.) The state 9 court denied the petition on January 13, 2022. (ECF No. 38-21.) Cotton appealed, and 10 the Nevada Court of Appeals affirmed on December 22, 2022. (ECF No. 38-42.) 11 Remittitur issued on January 17, 2023. (ECF No. 38-43.) 12 Cotton commenced this action on November 16, 2023. (ECF No. 1.) The Court 13 appointed counsel for Cotton, and Cotton filed his counseled First-Amended Petition on 14 April 14, 2025. (ECF Nos. 9, 23.) Cotton raises the following grounds in his First-Amended 15 Petition: 16 1. There was insufficient evidence to support his murder conviction. 17 2. His sentence violates his right to be free from cruel and unusual punishment. 18 3. His trial counsel failed to seek adverse inferences from the omission of exculpatory testing. 19 4. His trial counsel improperly conceded that Cotton was guilty of second-degree murder without his consent. 20 5. His trial counsel failed to object when the trial court did not adhere to the sentencing stipulation. 21 6. His trial counsel (a) failed to present expert testimony to support his defense theory of a struggle or accidental shooting and (b) instead 22 presented a false defense. 7. His trial counsel failed to present evidence that his PTSD and mental 23 health issues affected his ability to form first-degree intent. 24 (ECF No. 23.) 25 /// 26 /// 27 2 1 Respondent argues that (1) Cotton’s pro se Petition for a Writ of Habeas Corpus 2 Under 28 U.S.C. § 2254 by a Person in State Custody (“Original Petition”) and First- 3 Amended Petition are both untimely, and (2) grounds 3, 6a, and 7 are unexhausted.2 4 III. LEGAL STANDARDS 5 A. Timeliness 6 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one- 7 year period of limitations for state prisoners to file a federal habeas petition under 28 8 U.S.C. § 2254. The one-year limitation period begins to run from the latest of four possible 9 triggering dates, with the most common being the date on which the petitioner’s judgment 10 of conviction became final by either the conclusion of direct appellate review or the 11 expiration of the time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). For a 12 Nevada prisoner pursuing a direct appeal, a conviction becomes final when the 90-day 13 period for filing a petition for certiorari in the Supreme Court of the United States expires 14 after a Nevada appellate court has entered judgment or the Supreme Court of Nevada 15 has denied discretionary review. See Harris v. Carter, 515 F.3d 1051, 1053 & n. 1 (9th 16 Cir. 2008); Shannon v. Newland, 410 F.3d 1083, 1086 (9th Cir. 2005); Sup. Ct. R. 13. 17 The federal limitations period is tolled while “a properly filed application for State post- 18 conviction or other collateral review with respect to the pertinent judgment or claim is 19 pending.” 28 U.S.C. § 2244(d)(2). But no statutory tolling is allowed for the period between 20 finality of a direct appeal and the filing of a petition for post-conviction relief in state court 21 because no state court proceeding is pending during that time. Nino v. Galaza, 183 F.3d 22 1003, 1006-07 (9th Cir. 1999); Rasberry v. Garcia, 448 F.3d 1150, 1153 & n.1 (9th Cir. 23 2006). 24 25

2Respondent also argues that grounds 5 and 6b are unexhausted; however, given 26 that the Court finds these two grounds are untimely, it need not determine whether they 27 are exhausted. 3 1 B. Exhaustion 2 A state prisoner first must exhaust state court remedies on habeas claims before 3 presenting those claims to the federal courts. See 28 U.S.C. § 2254(b)(1)(A). This 4 exhaustion requirement ensures that the state courts have the first opportunity to address 5 and correct alleged violations of federal constitutional guarantees. See Coleman v. 6 Thompson, 501 U.S. 722, 730-31 (1991). “A petitioner has exhausted his federal claims 7 when he has fully and fairly presented them to the state courts.” Woods v. Sinclair, 764 8 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 9 (1999) (“Section 2254(c) requires only that state prisoners give state courts a fair 10 opportunity to act on their claims.”)). A petitioner must present the substance of his claim 11 to the state courts, and the claim presented to the state courts must be the substantial 12 equivalent of the claim presented to the federal court. See Picard v. Connor, 404 U.S. 13 270, 278 (1971). The state courts have been afforded a sufficient opportunity to hear an 14 issue when the petitioner has presented the state court with the issue’s factual and legal 15 basis. See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also Scott v. 16 Schriro, 567 F.3d 573, 582-83 (9th Cir. 2009) (“Full and fair presentation additionally 17 requires a petitioner to present the substance of his claim to the state courts, including a 18 reference to a federal constitutional guarantee and a statement of facts that entitle the 19 petitioner to relief.”). A petitioner may reformulate his claims so long as the substance of 20 his argument remains the same. See Picard, 404 U.S. at 277-78. 21 IV. DISCUSSION 22 A. Timeliness 23 Cotton’s direct appellate review concluded on February 5, 2020, with the Nevada 24 Supreme Court’s affirmation of his judgment of conviction. As such, Cotton’s conviction 25 became final when the time expired for filing a petition for writ of certiorari with the United 26 27 4 1 States Supreme Court 1503 days later on July 4, 2020. The federal statute of limitations 2 began to run the following day: July 5, 2020. Cotton timely filed his state habeas petition 3 on March 2, 2021, tolling the AEDPA clock. As a result, 240 days elapsed between the 4 finality of the judgment and the filing of the state habeas petition. The remaining 125 days 5 of the AEDPA limitations period were statutorily tolled during the pendency of all 6 proceedings related to Cotton’s state habeas petition. Tolling ended on January 17, 2023, 7 when the remittitur issued. The AEDPA clock restarted the following day, January 18, 8 2023, and expired 125 days later on May 23, 2023. Cotton’s Original Petition was 9 transmitted to the Court on or about November 16, 2023, and his First-Amended Petition 10 was filed on April 14, 2025, making them both untimely. 11 Cotton acknowledges that his Original Petition was untimely; however, he argues 12 that he is entitled to equitable tolling. (ECF No. 49 at 5.) The Supreme Court has held that 13 the AEDPA statute of limitations “is subject to equitable tolling in appropriate 14 cases.” Holland v. Fla., 560 U.S. 631, 645 (2010). Equitable tolling is appropriate when 15 (1) a petitioner has been pursuing his rights diligently, and (2) some extraordinary 16 circumstance stood in his way and prevented timely filing. See id. at 649. To satisfy the 17 first element, a petitioner “must show that he has been reasonably diligent in pursuing his 18 rights not only while an impediment to filing caused by an extraordinary circumstance 19 existed, but before and after as well, up to the time of filing.” Smith v. Davis, 953 F.3d 20 582, 598-99 (9th Cir. 2020) (en banc). To satisfy the second element, a petitioner must 21 demonstrate that the “extraordinary circumstances” were the cause of his untimeliness. 22 Grant v. Swarthout, 862 F.3d 914, 926 (9th Cir. 2017). 23 Cotton argues that he is entitled to equitable tolling because he suffers from a 24 serious combination of multiple chronic autoimmune diseases, including mixed 25 connective tissue disease with prominent myotosis and interstitial lung disease, which 26 3During this time, the 90-day deadline was extended to 150 days due to the Covid- 27 19 pandemic. 5 1 were not diagnosed until early 2024 but began to impact his daily quality of life starting in 2 late 2022. (ECF No. 49 at 5.) Cotton explains that “[h]e had low energy, was constantly 3 struggling to breathe, and was bed-ridden for long stretches of time,” significantly 4 impairing his ability to work on his petition. (Id. at 8.) 5 In support of his contention that an extraordinary circumstance stood in his way 6 and prevented timely filing, Cotton presents a report prepared by Ryan O’Connor, M.D., 7 an Emergency Medical Physician. (ECF No. 50-6.) Dr. O’Connor reviewed Cotton’s 8 medical records and reported the following:

9 Mixed Connective Tissue Disease is a rare autoimmune disorder that combines features of several other diseases including systemic lupus 10 erythematosus, scleroderma, and polymyositis. This condition is characteristically chronic with onset of symptoms often gradually 11 progressing over years before a diagnosis is made. The disease is an autoimmune disorder where the body’s immune system starts to attack 12 parts of the patient’s own body resulting in symptoms. In Mr. Cotton’s case, with prominent myositis and interstitial lung disease, his muscles (including 13 the heart) and lungs are particularly affected. There is no cure for this disease and treatment aims at limiting the symptoms. The mainstay of 14 treatment is immunosuppressive therapy which weakens the patient’s immune system but makes them prone to complications such as developing 15 infections. [Cotton’s] medical records . . . demonstrate the progressively 16 worsening course of Mr. Cotton’s chronic medical condition. The patient manifested significant complaints of shortness of breath, fatigue, and 17 weakness from at least January of 2023. These complaints increased in frequency and severity throughout the year and culminated in multiple 18 lengthy hospitalizations by early 2024. The severity of his autoimmune disorder and resulting complications is starkly apparent in his life- 19 threatening presentation to the ER on 03/11/2024 that resulted in a nine day stay in the Intensive Care Unit. 20 It is my professional medical opinion that Mr. Cotton was manifesting significant symptoms of his latter diagnosed mixed connective tissue 21 disease with prominent myositis and interstitial lung disease, including shortness of breath, weakness, and fatigue, that likely impacted his ability 22 to perform functions of daily life and would have significantly impaired his ability to complete a petition in a timely manner. 23 (Id. at 5-6.) 24 In support of his contention that he acted with diligence, Cotton explains that he 25 had asked the law library for assistance but was unable to get the help he needed, his 26 mother contacted the Federal Public Defender on his behalf in February 2023 to get 27 6 1 assistance but was unable to get assistance without the court appointing counsel, he sent 2 kites to the law library asking for information, and he asked another inmate for help and 3 that inmate referred him to a jail house lawyer. (ECF No. 50-8.) 4 Given the medically documented severity of Cotton’s physical impairment and Dr. 5 O’Connor’s finding of causation between Cotton’s autoimmune disease and the untimely 6 filing of his Original Petition, the Court finds that Cotton is entitled to equitable tolling. 7 Specifically, the Court finds that Cotton has demonstrated that his physical condition rises 8 to the level of an extraordinary circumstance, Cotton diligently pursued his rights as 9 reasonably could be expected given his physical impairments, and Cotton’s physical 10 impairment was the cause of his untimely filing. See Holland, 560 U.S. at 649-50 11 (explaining that the “exercise of a court’s equity powers must be made on a case-by-case 12 basis” which “enables courts to meet new situations that demand equitable intervention, 13 and to accord all the relief necessary to correct particular injustices”); see also Cruz v. 14 Ramirez-Palmer, 50 Fed. Appx. 367 (9th Cir. 2022) (recognizing that a petitioner’s 15 physical incapacities, which render a petitioner “severely incapacitated,” may warrant 16 equitable tolling of the AEDPA one-year limitations period). Accordingly, the Court finds 17 that Cotton’s Original Petition was timely. 18 Respondent next argues that, even if the Court finds that Cotton’s Original Petition 19 was timely, grounds 3, 5, 6a, 6b, and 7 of the First-Amended Petition remain untimely 20 because they do not relate back to any claim raised in the Original Petition. (ECF No. 35 21 at 6.) A new claim in an amended petition that is filed after the expiration of the AEDPA 22 one-year limitation period will be timely only if the new claim relates back to a claim in a 23 timely-filed pleading on the basis that the claim arises out of “the same conduct, 24 transaction or occurrence” as a claim in the timely pleading. See Mayle v. Felix, 545 U.S. 25 644 (2005). In Mayle, the United States Supreme Court held that habeas claims in an 26 amended petition do not arise out of “the same conduct, transaction or occurrence” as 27 7 1 claims in the Original Petition merely because the claims all challenge the same trial, 2 conviction, or sentence. See id. at 655-64. Rather, habeas claims asserted in an 3 amended petition relate back “only when the claims added by amendment arise from the 4 same core facts as the timely filed claims, and not when the new claims depend upon 5 events separate in ‘both time and type’ from the originally raised episodes.” Id. at 657. In 6 this regard, the reviewing court looks to “the existence of a common ‘core of operative 7 facts’ uniting the original and newly asserted claims.” Id. at 659. A claim that merely adds 8 “a new legal theory tied to the same operative facts as those initially alleged” will relate 9 back and be timely. Id. at 659 & n. 5; see also Ha Van Nguyen v. Curry, 736 F.3d 1287, 10 1297 (9th Cir. 2013). 11 In ground 3, Cotton alleges that his trial counsel failed to seek adverse inferences 12 from the omission of exculpatory testing done for gunshot residue and DNA. (ECF No. 23 13 at 13.) Cotton argues that this ground relates back to ground 3 of his Original Petition. 14 (ECF No. 49 at 23.) In ground 3 of his Original Petition, Cotton alleged that his trial counsel 15 “fail[ed] to seek adverse inferences from the deliberate omission of exculpatory testing on 16 the part of the prosecution.” (ECF No. 4 at 12.) Cotton argued that the “[d]efense would 17 have been entitled to two adverse inferences regarding evidence that was collected for 18 testing, but was not tested at the request of the state,” including “the lack of available 19 gunshot testing” and DNA on the firearm. (Id. at 16.) Respondent argues that ground 3 of 20 the First-Amended Petition includes the following facts that were not included in ground 21 3 of the Original Petition: “the jury’s inquiries about the gunshot residue testing as well as 22 trial counsel failing to object in lieu of requesting an adverse inference jury instruction.” 23 (ECF No. 55 at 4.) Respondent too narrowly construes and compares ground 3 of the 24 First-Amended Petition with ground 3 of the Original Petition. Rather, construing these 25 two claims more broadly, it is clear to the Court that they share a common core of 26 operative facts. The Court finds that Ground 3 is timely. 27 8 1 In ground 5, Cotton alleges that his trial counsel failed to object when the trial court 2 did not adhere to the sentencing stipulation. (ECF No. 23 at 22.) Cotton argues that this 3 ground relates back to grounds 6 and 2 of his Original Petition. (ECF No. 49 at 23-24.) 4 Neither ground 6 nor ground 2 of Cotton’s Original Petition specifically discuss the 5 sentencing stipulation. Because Cotton concedes that the stipulation is the operative fact 6 of ground 5 (see ECF No. 49 at 23), the Court, even liberally construing the Original 7 Petition, cannot find that ground 5 relates back. Ground 5 is dismissed as untimely. 8 In ground 6a, Cotton alleges that his trial counsel failed to present expert testimony 9 to support his defense theory of a struggle or accidental shooting. (ECF No. 23 at 29.) 10 Cotton argues that this ground relates back to grounds 3 and 7 of his Original Petition. 11 (ECF No. 49 at 24-25.) Respondent argues that ground 6a includes the following fact not 12 referenced within his Original Petition: “an expert declaration provided by Senior Forensic 13 Scientist Chris Coleman.” (ECF No. 55 at 4.) The inclusion of this declaration does not 14 change the common core of operative facts. Rather, the declaration merely provides 15 factual support for the operative facts. Accordingly, ground 6a relates back given that 16 Cotton made the following argument within his Original Petition: “without consulting and 17 presenting an expert, counsel was unable to either present specific evidence that his 18 client was not the murderer or advance a plausible alternative defense theory.” (ECF No. 19 4 at 44.) The Court finds that Ground 6a is timely. 20 In ground 6b, Cotton alleges that his trial counsel presented a false defense that 21 the shooting was a suicide, which is a theory unsupported by the evidence. (ECF No. 23 22 at 35-36.) Cotton argues that although “this claim does not relate back to specific facts 23 pled in the original petition,” “it does connect to a penumbra of claims concerning the 24 division of authority between attorney and client in choosing the objective of the defense.” 25 (ECF No. 49 at 25.) The Court finds that this connection is too attenuated for relation- 26 back purposes. The division of authority between attorney and client is too general of an 27 9 1 idea to contain a common core of operative facts with the specific argument that an 2 attorney presented an unsupportable theory that the victim committed suicide. Ground 6b 3 is dismissed as untimely. 4 In ground 7, Cotton alleges that his trial counsel failed to present evidence that his 5 PTSD and mental health issues affected his ability to form first-degree intent. (ECF No. 6 23 at 39.) In his opposition to the Motion, Cotton did not discuss Respondent’s contention 7 that ground 7 does not relate back.4 (See generally ECF No. 49.) However, following the 8 Court’s independent review, the Court finds that ground 7 relates back to Cotton’s Original 9 Petition. In the Original Petition, Cotton argued that (1) his mental health issues, including 10 his PTSD, should have been considered and (2) “there was no evidence of an intent to 11 kill at any time.” (ECF No. 4 at 8, 20.) The combination of these facts constitutes the 12 operative facts of ground 7. The Court finds that Ground 7 is timely. 13 B. Exhaustion 14 Cotton argues that ground 3 is exhausted because he presented it to the state 15 courts during his state habeas proceedings. (ECF No. 49 at 26.) As a reminder, in ground 16 3, Cotton alleges that his trial counsel failed to seek adverse inferences from the omission 17 of exculpatory testing done for gunshot residue and DNA. (ECF No. 23 at 13.) Cotton 18 raised this ground in his supplement to his state habeas petition: his trial counsel was 19 ineffective due to a “[f]ailure to seek adverse inferences from deliberate omission of 20 exculpatory testing.” (ECF No. 38-13 at 17.) In his opening brief on appeal, Cotton argued 21 that the state court summarily erred in denying his state habeas petition without 22 conducting an evidentiary hearing because he “raised multiple claims for relief . . . in the 23 Petition.” (ECF No. 38-35 at 7, 30.) Although Cotton alluded to this claim by pointing the 24 appellate court to his state habeas petition, Respondent contends that Cotton never 25 specifically raised it on appeal. (ECF No. 55 at 10.) While Cotton did not explicitly raise 26

27 4This appears to have been an oversight. 10 1 this claim within his opening brief, he did argue that his trial counsel was ineffective and 2 that “despite the decedent’s hands being preserved for evidence and having four swabs 3 taken from the gun, no testing whatsoever was done to establish whether she had 4 gunshot residue on her hands or whether her DNA was on the trigger of the gun.” (Id. at 5 27-28.) Accordingly, Cotton presented the state appellate court with ground 3’s legal 6 basis—ineffective assistance of counsel—and factual basis—the lack of exculpatory 7 testing. The Court finds that ground 3 was fairly presented and is exhausted. 8 Turning to grounds 6a and 7, Cotton concedes that they are unexhausted, but he 9 contends that they should be considered technically exhausted and procedurally 10 defaulted and that he can overcome their procedural defaults under Martinez v. Ryan. 11 (ECF No. 49 at 27.) 12 A claim may be considered procedurally defaulted if “it is clear that the state court 13 would hold the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th 14 Cir. 2002). Cotton would face several procedural bars if he were to return to state court. 15 See, e.g., NRS §§ 34.726, 34.810. Nevada has cause and prejudice and fundamental 16 miscarriage of justice exceptions to its procedural bars, which are substantially the same 17 as the federal standards. If a petitioner has a potentially viable cause-and-prejudice or 18 actual-innocence argument under the substantially similar federal and state standards, 19 then that petitioner cannot establish that “it is clear that the state court would hold the 20 claim procedurally barred.” See Sandgathe, 314 F.3d at 376. For that reason, the courts 21 in this district have generally declined to find a claim subject to anticipatory procedural 22 default unless the petitioner represents that he would be unable to establish cause and 23 prejudice in a return to state court. In such a case, the claim would generally be subject 24 to immediate dismissal as procedurally defaulted, as the petitioner would have conceded 25 that he has no grounds for exception to the procedural default in federal court. 26 27 11 1 A different situation is presented, however, where the Nevada state courts do not 2 recognize a potential basis to overcome the procedural default arising from the violation 3 of a state procedural rule that is recognized under federal law. In Martinez v. Ryan, the 4 Supreme Court held that the absence or inadequate assistance of counsel in an initial- 5 review collateral proceeding may be relied upon to establish cause excusing the 6 procedural default of a claim of ineffective assistance of trial counsel. See 566 U.S. 1, 9 7 (2012). The Nevada Supreme Court does not recognize Martinez as cause to overcome 8 a state procedural bar under Nevada state law. See Brown v. McDaniel, 331 P.3d 867, 9 875 (Nev. 2014). Thus, a Nevada habeas petitioner who relies upon Martinez—and only 10 Martinez—as a basis for overcoming a state procedural bar on an unexhausted claim can 11 successfully argue that the state courts would hold the claim procedurally barred but that 12 he, nonetheless, has a potentially viable cause-and-prejudice argument under federal law 13 that would not be recognized by the state courts when applying the state procedural bars. 14 Here, Cotton advances only Martinez as a basis for excusing the anticipatory 15 default of grounds 6a and 7. Accordingly, the Court considers grounds 6a and 7 to be 16 technically exhausted and procedurally defaulted. Because the cause-and-prejudice 17 analysis under Martinez is necessarily intertwined with the merits of those claims, the 18 Court defers consideration of whether Cotton can overcome the procedural defaults of 19 grounds 6 and 7 until the filing of an answer and reply in this matter. 20 V. CONCLUSION 21 It is therefore ordered that Respondent’s Motion (ECF No. 35) is granted in part, 22 as follows: (1) grounds 5 and 6b are dismissed as untimely; and (2) grounds 6a and 7 are 23 considered technically exhausted but procedurally defaulted, and consideration of 24 whether Cotton can demonstrate cause and prejudice under Martinez to overcome these 25 procedural defaults is deferred until after the filing of an answer and reply in this matter. 26 27 12 1 It is further ordered that Respondent has until July 17, 2026 to file his answer to 2 || the remaining grounds in the First-Amended Petition. Cotton will then have 30 days to file 3 || his reply. 4 It is further kindly ordered that the Clerk of Court substitute John Henley for 5 || Respondent Tim Garrett. 6 DATED THIS 15!" Day of May 2026.

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