Joseph Martin Norton, III v. William Hutchingson, et al.

• Court: District Court, D. Nevada
• Decided: September 29, 2025
• Docket: 2:23-cv-01357
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JOSEPH MARTIN NORTON, III, Case No. 2:23-cv-01357-RFB-MDC

7 Petitioner, ORDER

8 v.

9 WILLIAM HUTCHINGSON, et al.,

10 Respondents.

11 12 I. INTRODUCTION 13 Before the Court are Respondents’ Motion to Dismiss (ECF No. 26) and Motion to Seal 14 (ECF No. 23). Also before the Court is Petitioner Joseph Martin Norton, III’s Motion for 15 Appointment of Counsel (ECF No. 31). 16 II. PROCEDURAL BACKGROUND 17 Norton challenges a conviction and sentence imposed by the Eighth Judicial District Court 18 for Clark County. On February 5, 2021, the state district court entered a judgment of conviction 19 for robbery and conspiracy to commit robbery. The state district court sentenced Norton to a 72- 20 month term, with minimum parole eligibility after 28 months as well as a concurrent term of 180 21 months, with minimum parole eligibility after 72 months. 22 Norton did not file a timely appeal of the judgment of conviction. On February 23, 2021, 23 he filed a counseled motion to withdraw guilty plea. See ECF No. 20-21. On November 22, 2021, 24 Norton filed a pro se state habeas petition. See ECF No. 21-2. Because he was represented by 25 counsel, the state district court dismissed the state habeas petition filed in November 2021 as a 26 fugitive document. See ECF No. 21-10. 27 On March 23, 2022, Norton filed a counseled motion to withdraw plea/writ of habeas. See 28 ECF No. 21-15. The state district court found that the motion was procedurally improper and 1 untimely. See ECF No. 21-24. In the alternative, the state district court held that even construed 2 as a post-conviction petition, it is untimely. See id. at 6-8. In addition, the state district court found 3 that even if Norton’s claims were properly raised, they would nonetheless fail because he is not 4 entitled to withdraw his guilty plea. See id. at 8-13. The Nevada Court of Appeals affirmed. See 5 ECF No. 22-23. Nonetheless, the Nevada Court of Appeals noted that Norton filed motions to 6 withdraw guilty plea in February 2021 that were still outstanding, and that the state district court 7 should construe these motions as a postconviction habeas petition.1 See id. at 2 n.3. 8 In August 2023, Norton initiated this federal habeas case alleging the following: 9 Ground 1: In violation of the Sixth Amendment Right to Effective Assistance of Counsel 10 A. Counsel did not investigate evidence regarding an illegal search warrant that produced incriminating evidence. 11 B. Counsel failed to address false statements made by victim.

12 Ground 2: In violation of the Sixth Amendment right to effective assistance of counsel, post-conviction counsel was ineffective for failing to properly and timely 13 file a post-conviction petition for writ of habeas corpus. 14 Ground 3: The state district court’s dismissal of Norton’s pro se pleadings was a 15 result of the ineffective assistance of post-conviction counsel in violation of Norton’s Sixth Amendment right to effective assistance of counsel and Due 16 Process.

17 ECF No. 7 at 3-7. 18 III. MOTION TO DISMISS 19 Respondents assert that Grounds 1A and 1B are barred by Tollett v. Henderson, 411. U.S. 20 258, 267 (1973). In addition. Respondents move to dismiss Grounds 1A, 1B, and 3 as unexhausted. 21 They further argue that Ground 2 is procedurally defaulted and that Grounds 2 and 3 do not raise 22 cognizable claims.

23 A. Claims of Ineffective Assistance of Postconviction Counsel are Not Cognizable in Federal Habeas Corpus 24 Respondents move to dismiss Grounds 2 and 3 because they are noncognizable claims of 25 ineffective assistance of postconviction counsel. See ECF No. 26 at 7-8. There is no federal 26 constitutional right to the effective assistance of counsel in state postconviction proceedings. See 27 28 1 Even if the state district court has not ruled on the February 2021 motions to withdraw guilty plea, the claims Norton raised in such motions have not been raised in his federal habeas petition. See ECF Nos. 20-18, 20-21. 1 Pa. v. Finley, 481 U.S. 551, 556–57 (1987). The Supreme Court of the United States has 2 established an equitable exception to the procedural default doctrine based on ineffective 3 assistance of postconviction counsel. See Martinez v. Ryan, 566 U.S. 1, 14 (2012). Nevertheless, 4 there is no freestanding constitutional right to effective assistance of counsel in postconviction 5 proceedings. Accordingly, Grounds 22 and 3 are dismissed as noncognizable in federal habeas 6 corpus proceedings.

7 B. Whether Grounds 1A and 1B Are Barred Under Tollett 8 In Tollett, the United States Supreme Court held that “[w]hen a criminal defendant has 9 solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, 10 he may not thereafter raise independent claims relating to the deprivation of constitutional rights 11 that occurred prior to the entry of the guilty plea.” Tollett, 411 U.S. at 267. A petitioner may only 12 attack the voluntary and intelligent nature of his guilty plea. Id. An exception to this general rule 13 is “that a habeas petitioner may ‘attack the voluntary and intelligent character of the guilty plea’ 14 based on pre-plea ineffective assistance of counsel ‘by showing that the advice he received from 15 counsel was not within the ‘range of competence demanded of attorneys in criminal cases.’” Mahrt 16 v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017) (citing Tollett, 411 U.S. at 267-69). The Mahrt 17 Court clarified that this exception to the Tollett bar is not limited to incompetent advice from 18 counsel and extends to instances in which “the action, or inaction, of counsel prevent[ed] petitioner 19 from making an informed choice whether to plead.” Id. 20 Respondents argue that Grounds 1A and 1B are barred by Tollett. In Ground 1A, Norton 21 alleges counsel rendered ineffective assistance of counsel by failing to investigate evidence 22 regarding an illegal search warrant the produced incriminating evidence. In Ground 1B, he alleges 23 that counsel rendered ineffective assistance of counsel by failing to object to false statements made 24 by the victim. These alleged failures could have arguably prevented Norton “from making an 25 informed choice whether to plead.” Id. Therefore, the Court concludes that the grounds for relief 26 alleged in Grounds 1A and 1B are not barred under Tollett. See also Hill v. Lockhart, 474 U.S. 52, 27 28 2 Because the Court dismisses Ground 2 as noncognizable in federal habeas corpus proceedings, it need not determine whether Ground 2 should be dismissed because it is procedurally defaulted. 1 59 (1985) (recognizing that counsel’s failure to investigate can prejudice defendant by impacting 2 counsel’s recommendation as to a guilty plea). 3 C. Whether Grounds 1A, 1B, and 33 Are Unexhausted 4 A state prisoner first must exhaust state court remedies on a habeas claim before presenting 5 that claim to the federal courts. See 28 U.S.C. § 2254(b)(1)(A). This exhaustion requirement 6 ensures that the state courts, as a matter of comity, will have the first opportunity to address and 7 correct alleged violations of federal constitutional guarantees. See Coleman v. Thompson, 501 8 U.S. 722, 730–31 (1991). “A petitioner has exhausted his federal claims when he has fully and 9 fairly presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) 10 (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999)). 11 To satisfy the exhaustion requirement, a claim must have been raised through one complete 12 round of either direct appeal or collateral proceedings to the highest level of review available in 13 the state courts. See O’Sullivan, 526 U.S. at 844–45; Peterson v. Lampert, 319 F.3d 1153, 1156 14 (9th Cir. 2003) (en banc). A properly exhausted claim “‘must include reference to a specific federal 15 constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.’” 16 Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)); Castillo v. 17 McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both the operative facts 18 and federal legal theory upon which a claim is based). 19 “More generally, the Court has held pro se pleadings to a less stringent standard than briefs 20 by counsel and reads pro se pleadings generously, ‘however inartfully pleaded.’” Davis v. Silva, 21 511 F.3d 1005, 1009 n.4 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)). 22 In Grounds 1A and 1B, Norton alleges ineffective assistance of counsel claims. Norton 23 asserts he raised these claims in his November 21, 2021, and January 31, 2022, state habeas 24 petitions. See ECF No. 27 at 3-6. Respondents argue that Grounds 1A and 1B should be dismissed 25 as unexhausted because the claims were raised in fugitive documents filed by Norton while he was 26 represented by counsel. The state district court dismissed the November 21, 2021, petition as a 27 28 3 The Court has already dismissed Ground 3 as noncognizable in federal habeas proceedings, so the Court will not determine whether Ground 3 has been exhausted. 1 fugitive document, as he was represented by counsel. See ECF No. 21-10. Although the state 2 district court did not rule on the January 31, 2022, petition, Norton similarly filed it pro se while 3 he was represented by counsel. See ECF No. 21-6. 4 Even if the Court considered the November 21, 2021, and January 31, 2022, pro se 5 petitions, Norton did not present these claims to the state appellate courts. Accordingly, Grounds 6 1A and 1B are unexhausted. Nevertheless, Norton argues that the only reason that the state 7 appellate courts did not rule on Grounds 1A and 1B are because his postconviction counsel failed 8 to raise these claims. ECF No. 27 at 9. 9 Generally, an “anticipatory default” determination is not the next step in a federal habeas 10 case arising out of Nevada after it has been determined that the petition contains unexhausted 11 claims. In federal habeas cases arising out of Nevada, the state courts, generally, apply 12 substantially the same standards as do the federal courts in determining whether a petitioner can 13 demonstrate either cause or actual innocence in order to overcome a claimed procedural default. 14 In past cases, this Court has thus rejected efforts by habeas petitioners to claim technical exhaustion 15 by procedural default while at the same time arguing that they nonetheless can establish, inter alia, 16 cause and prejudice or actual innocence to overcome the procedural default. 17 If the petitioner has a potentially viable cause-and-prejudice or actual innocence argument 18 under the substantially similar federal and state standards, then petitioner cannot establish that “it 19 is clear that the state court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 20 F.3d 371, 376 (9th Cir. 2002) (citation omitted). On the other hand, if petitioner has no potentially 21 viable arguments, then the claim is indeed technically exhausted; but it is also subject to immediate 22 dismissal with prejudice as procedurally defaulted. Accordingly, the Court, generally, does not 23 proceed to cause-and-prejudice analysis as a matter of course following a holding that a claim is 24 unexhausted. Generally, the petitioner must either establish a basis for a stay or dismiss the 25 unexhausted claims. 26 A different situation, however, is presented where the Nevada state courts do not recognize 27 a potential basis to overcome the procedural default arising from the violation of a state procedural 28 rule that is recognized under federal law. In Martinez v. Ryan, the Supreme Court created a narrow 1 exception to the general rule that errors of post-conviction counsel cannot provide cause for a 2 procedural default. See Martinez, 566 U.S. at 16-17. “Under Martinez, the procedural default of a 3 substantial claim of ineffective assistance of trial counsel is excused if state law requires that all 4 claims be brought in the initial collateral review proceeding . . . and if in that proceeding there was 5 no counsel or counsel was ineffective.” Ramirez v. Ryan, 937 F.3d 1230, 1241 (9th Cir. 6 2019) (citing Martinez, 566 U.S. at 17), reversed on other grounds by Shinn v. Ramirez, 596 U.S. 7 366 (2022). Nevada law requires prisoners to raise ineffective assistance of counsel (“IAC”) claims 8 for the first time in a state petition seeking post-conviction review, which is the initial collateral 9 review proceeding for the purposes of applying Martinez. See Rodney v. Filson, 916 F.3d 1254, 10 1259–60 (9th Cir. 2019). 11 Accordingly, a Nevada habeas petitioner who can rely on Martinez, and only Martinez, as 12 a basis for overcoming a state procedural bar on an unexhausted claim can argue that the state 13 courts would hold the claim procedurally barred but that he nonetheless has a potentially viable 14 cause-and-prejudice argument under federal law that would not be recognized by the state courts. 15 If Norton has any argument as to why Grounds 1A and 1B are technically exhausted by 16 procedural default but that the default can be overcome under Martinez, Norton may raise that 17 argument in a supplement to his opposition to Respondents’ motion to dismiss in 30 days from the 18 date of entry of this order. Respondents will have 14 days following service of Norton’s 19 supplement to file a response. If Norton does not file a supplement presenting an argument as to 20 why Grounds 1A and 1B are technically exhausted by procedural default but that the default can 21 be overcome under Martinez, the Court will grant Respondents’ motion to dismiss Norton’s 22 petition. 23 IV. MOTION FOR APPOINTMENT OF COUNSEL 24 There is no constitutional right to appointed counsel in a federal habeas corpus proceeding. 25 See Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015) (citing Lawrence v. Florida, 549 U.S. 327, 26 336-37 (2007)). Nonetheless, an indigent petitioner may request appointed counsel to pursue 27 habeas relief. See 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is generally 28 discretionary. Id. § 3006A(a)(2) (authorizing appointment of counsel “when the interests of justice 1 so require”). But counsel must be appointed if the complexities of the case are such that denial of 2 counsel would amount to a denial of due process, and where the petitioner is so uneducated that 3 he or she is incapable of fairly presenting his or her claims. See La Mere v. Risley, 827 F.2d 622, 4 626 (9th Cir. 1987); Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980). 5 The Court finds that this case presents complex issues that warrant the appointment of 6 counsel. As discussed above, Norton must show that Martinez’s narrow exception preserves his 7 ineffective assistance of counsel claims. This exception, and its underlying doctrine, are by no 8 means straightforward; instead, they present a cobweb of technical, procedural issues—as 9 demonstrated by this Court’s discussion of Martinez. See supra Part III.C. Requiring Petitioner to 10 navigate them by himself would be fundamentally unjust. The Court therefore finds that the 11 interest of justice require the appointment of counsel for Norton. 12 V. MOTION TO SEAL 13 Respondents seek leave to file two documents under seal within the index of exhibits, 14 Norton’s Pre-Sentence Investigation Reports (“PSI”), Exhibit 12 (ECF No. 24-1), dated 15 November 18, 2020; Medical, Exhibit 44 (ECF No. 24-2); and Medical, Exhibit 49 (ECF No. 24- 16 3). Under Nevada law, the PSI is “confidential and must not be made a part of any public 17 record.” NEV. REV. STAT. ANN. § 176.156(5) (West 2025). 18 Having reviewed and considered the matter in accordance with Kamakana v. City and 19 Cnty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and its progeny, the Court finds that a 20 compelling need to protect Norton’s safety, privacy, and/or personal identifying information 21 outweighs the public interest in open access to court records. Exhibits 12, 44 and 49 are 22 considered properly filed under seal. 23 VI. CONCLUSION 24 For the foregoing reasons, IT IS HEREBY ORDERED that Respondents’ Motion to 25 Dismiss (ECF No. 26) is GRANTED in part. Grounds 2 and 3 are dismissed as noncognizable in 26 federal habeas proceedings. 27 IT IS FURTHER ORDERED that Petitioner has 30 days from entry of this order to file 28 a supplement raising an argument as to why Grounds 1A and 1B are technically exhausted by 1 | procedural default but that the default can be overcome under Martinez. Respondents have 14 days from service of the supplement to file a response. 3 IT IS FURTHER ORDERED that Norton’s Motion for Appointment of Counsel (ECF No. 31)is GRANTED. 5 IT IS FURTHER ORDERED that Respondents’ Motion to Seal (ECF No. 23) is GRANTED. Exhibits 12, 44, and 49 are considered properly filed under seal.

8 DATED: September 28, 2025. . CVS 10 RICHARD F. BOULWARE, II 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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