Keller v. Garrett

Opinion

CHRISTOPHER KELLER, Case No. 3:22-cv-00481-ART-CLB

Petitioner, v. ORDER DENYING NETHANJAH BREITENBACH,1 et al., Respondents.

On August 9, 2023, counseled Petitioner Christopher Keller filed his second-amended § 2254 petition. (ECF No. 20.) This matter comes before the Court on Respondents’ motion to dismiss Keller’s second-amended petition. (ECF No. 25.) Keller opposed the motion, and Respondents replied. (ECF Nos. 32, 33.) For the reasons stated below, the Court denies the motion. I. BACKGROUND The Nevada Supreme Court described the crime, as revealed by the evidence at the trial, as follows: Inside Keller’s car, officers found 344.29 grams of methamphetamine, 33.92 grams of heroin, .537 grams of cocaine, a mixture of the three controlled substances, and a gun. The quantity of methamphetamine and heroin exceed personal use levels, and the discovery of 1-inch by 1-inch baggies, a large amount of cash, as well as a gun, fairly indicated to the officers that Keller was trafficking in drugs. (ECF No. 27-30 at 6.) A jury found Keller guilty of seven drug-related crimes and two counts of ownership or possession of a firearm by a prohibited person. (ECF No. 27-17.) Keller was sentenced to an aggregate term of life in prison with parole

1The state corrections department’s inmate locator page states that Keller is incarcerated at Lovelock Correctional Center. Nethanjah Breitenbach is the warden for that facility. At the end of this order, this Court direct the clerk to substitute Nethanjah Breitenbach as a respondent for Respondent Timothy Garrett under Federal Rule of Civil Procedure 25(d). eligibility after 20 years. (Id. at 5.) Keller’s amended judgment of conviction was entered on December 12, 2017. (Id.) Keller appealed, and the Nevada Supreme Court affirmed his judgment of conviction on October 15, 2018. (ECF No. 27-30.) Remittitur issued on November 9, 2018. (ECF No. 27-31.) Keller filed his pro se state post-conviction habeas petition on August 26, 2019. (ECF No. 27-37.) The state court denied Keller post-conviction relief on November 2, 2020. (ECF No. 28-3.) Keller appealed, and the Nevada Court of Appeals dismissed the appeal on September 28, 2021. (ECF No. 28-20.) Remittitur issued on October 26, 2021. (ECF No. 28-21.) Following a motion to amend the state court’s order, the state court issued a new order on April 11, 2022. (ECF No. 28-28.) Keller appealed, and the Nevada Court of Appeals affirmed on September 9, 2022. (ECF No. 28-40.) Remittitur issued on October 4, 2022. (ECF No. 28-41.) In his instant second-amended petition, Keller presents the following grounds for relief:

1. The state court violated his right to counsel of his choice. 2. He was denied his right to counsel when the state court did not appoint new counsel even though his trial counsel was conflicted. 3. His counsel failed to include important facts and argue key legal issues in his motion to suppress the evidence found in his car and apartment. 4. His counsel failed to request an adverse inference instruction based on the destruction of body camera footage. 5. There were cumulative errors. (ECF No. 20.) Respondents argue that (1) the second-amended petition is untimely and ground 4 does not relate back to a timely-filed petition, and (2) grounds 1, 2, 3, 4, and 5 are unexhausted. (ECF No. 25.) A. Relation back of ground 4 Respondents contend that only Keller’s original pro se federal petition and counseled first-amended petition were timely, and ground 4 of his second- amended petition does not relate back to either of those petitions because it “differ[s] in both time and type.” (ECF No. 25 at 6–8.) Keller does not dispute that his second-amended petition is untimely; rather, he contends that ground 4 of his second-amended petition relates back to grounds 8 and 31 of his timely-filed first-amended petition. (ECF No. 32 at 7.) A new claim in an amended petition that is filed after the expiration of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation period will be timely only if the new claim relates back to a claim in a timely-filed pleading on the basis that the claim arises out of “the same conduct, transaction or occurrence” as a claim in the timely pleading. Mayle v. Felix, 545 U.S. 644 (2005). In Mayle, the United States Supreme Court held that habeas claims in an amended petition do not arise out of “the same conduct, transaction or occurrence” as claims in the original petition merely because the claims all challenge the same trial, conviction, or sentence. Id. at 655–64. Rather, habeas claims asserted in an amended petition relate back “only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in ‘both time and type’ from the originally raised episodes.” Id. at 657. In this regard, the reviewing court looks to “the existence of a common ‘core of operative facts’ uniting the original and newly asserted claims.” Id. at 659. A claim that merely adds “a new legal theory tied to the same operative facts as those initially alleged” will relate back and be timely. Id. at 659 n.5; Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013). In ground 8 of his first-amended petition, Keller argued that his “trial counsel was ineffective for failing to argue that the state improperly destroyed evidence or lost evidence stemming from Officer J. Henry’s body camera being lost.” (ECF No. at 12 at 22.) And in ground 31 of his first-amended petition, Keller argued that his “appellate counsel was ineffective for failing to argue that the district court erred by failing to dismiss the case with prejudice due to the lost body camera video from Officer Henry, which would have verified Keller’s version of the stopping and searches of Keller, his vehicle, and his home.” (Id. at 68.) Comparatively, in ground 4 of his second-amended petition, Keller argues that his trial counsel ineffectively failed to request an adverse inference instruction based on the destruction of the body camera footage in violation of his Sixth and Fourteenth Amendment rights. (ECF No. 20 at 12.) This Court finds that ground 4 of the second-amended petition relates back to grounds 8 and 31 of the first-amended petition. Although ground 4 of the second-amended petition involves the failure to request an adverse inference instruction, it still arises from the same core facts as grounds 8 and 31 of the first-amended petition: his trial counsel erred regarding the spoilation of Officer Henry’s body camera footage. Indeed, the inclusion of the failure to request a jury instruction regarding the spoilation—rather than just failing to argue about the spoilation—merely adds a new legal theory to the same operative facts as those initially alleged. Accordingly, ground 4 of the second-amended petition is timely. B. Exhaustion of grounds 1, 2, 3, 4, and 5 A state prisoner first must exhaust state court remedies on a habeas claim before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This exhaustion requirement ensures that the state courts, as a matter of comity, will have the first opportunity to address and correct alleged violations of federal constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). “A petitioner has exhausted his federal claims when he has fully and fairly presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims.”)). A petitioner must present the substance of his claim to the state courts, and the claim presented to the state courts must be the substantial equivalent of the claim presented to the federal court. Picard v. Connor, 404 U.S. 270, 278 (1971). The state courts have been afforded a sufficient opportunity to hear an issue when the petitioner has presented the state court with the issue’s factual and legal basis. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also Scott v. Schriro, 567 F.3d 573, 582–83 (9th Cir. 2009) (“Full and fair presentation additionally requires a petitioner to present the substance of his claim to the state courts, including a reference to a federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.”). A petitioner may reformulate his claims so long as the substance of his argument remains the same. Picard, 404 U.S. at 277–78. 1. Ground 1 In ground 1, Keller argues that the district court violated his right to counsel of choice in violation of the Sixth and Fourteenth Amendments. (ECF No. 20 at 5.) Keller explains that he retained an attorney to replace his court- appointed attorney, but the trial court would not allow the substitution because doing so would have required a continuance. (Id.) Keller also included the following five facts: (1) he had expressed dissatisfaction and lack of confidence in his court-appointed attorney, (2) his court-appointed attorney had attempted to withdraw as counsel, (3) his retained counsel had notified chambers of her representation of Keller, (4) his court-appointed attorney explained to the court that he lacked sufficient time to consult with Keller, and (5) the trial court erred because Keller was facing a life sentence. (Id.) Respondents contend that while ground 1 is based on similar facts as claims presented during Keller’s direct appeal, it has been fundamentally altered due to the addition of new legal allegations. (ECF No. 25 at 9.) Specifically, Respondents contend that Keller’s five facts outlined above were not alleged before the state courts. (Id.) In his opening brief on direct appeal to the Nevada Supreme Court, Keller argued that “the district court erred in not allowing a continuance and to allow [Keller’s retained counsel] to substitute in as counsel.” (ECF No. 27-19.) Within this ground for relief, Keller explained that he and his court-appointed counsel “had a breakdown in communication” and he “even filed a bar complaint.” (Id.) The Nevada Supreme Court then thoroughly addressed this argument in its order of affirmance. (See ECF No. 27-30 at 2–5.) This Court finds that the five above-mentioned facts did not fundamentally alter the claim presented on direct appeal to the Nevada Supreme Court. These facts simply added details to support ground 1 and did not fundamentally alter the claim. The substance of the claim remained the same: the trial court violated Keller’s right to choice of counsel by not allowing his retained counsel to substitute in because doing so would have meant continuing the trial. Ground 1 is exhausted. 2. Ground 2 In ground 2, Keller argues that he was denied his right to counsel when the trial court did not appoint new counsel even though his trial counsel was conflicted in violation of the Fifth, Sixth, and Fourteenth Amendment. (ECF No. 20 at 7.) In support of this claim, Keller gave the following facts: (1) he filed a pro se motion asking the court to appoint different counsel, (2) two months later, his court-appointed counsel filed a motion to withdraw as counsel, explaining he had difficulty communicating with Keller and Keller refused to speak to him, and (3) at a subsequent hearing, Keller’s court-appointed attorney explained that Keller no longer wanted to see the investigator that had been hired. (Id.) Respondents contend that while ground 2 is based on similar facts as claims presented during Keller’s direct appeal, it has been fundamentally altered due to the addition of new legal allegations. (ECF No. 25 at 10.) Specifically, Respondents contend that Keller’s three facts outlined above were not alleged before the state courts. (Id.) Respondents also argue that ground 2 may not have been federalized. (Id.) Regarding whether ground 2 has been federalized, the Nevada Supreme Court cited federal law in deciding this claim during Keller’s direct appeal proceedings. (See ECF No. 27-30 at 2–3 (citing United States v. Moore, 159 F.3d 1154, 1158–1159 (9th Cir. 1998) (discussing the factors to consider regarding a claim that the petitioner was denied his Sixth Amendment right to counsel because of an irreconcilable conflict between himself and his attorney)).) Because the Nevada Supreme Court decided the federal claim during Keller’s direct appeal, ground 2 is exhausted in that regard. See Casey v. Moore, 386 F.3d 896, 916 n.18 (9th Cir. 2004) (“[A] claim is exhausted if the State’s highest court expressly addresses the claim, whether or not it was fairly presented.”). Turning to Respondents’ former argument, in the affirmance of Keller’s judgment of conviction, the Nevada Supreme Court held as follows:

While Keller previously moved to dismiss his appointed counsel over eight months before trial and had field a bar complaint against him, Keller’s primary conflict with his appointed counsel at the time of trial was counsel’s use of an investigator Keller disliked. Keller’s objection to appointed counsel’s choice of investigator and a newfound ability to afford private counsel shortly before trial do not constitute an irreconcilable conflict. Compare Brinkley v. State, 101 Nev. 676, 678–79, 708 P.2d 1026, 1028 (1985) (characterizing reasons for substituting counsel as “unnoteworthy” when due to displeasure with a lack of communication and a newfound ability to afford private counsel), and Rimer v. State, 131 Nev. 307, 327, 351 P.3d 697, 711–712 (2015) (denying motion to substitute counsel where “private counsel had a different strategy and asked for a 90- day continuance”), with Young, 120 Nev. at 969, 102 P.3d at 576–77 (holding that there was “strong evidence of an irreconcilable conflict” where defendant complained about counsel five times to the court, moved to substitute counsel twice, and counsel disobeyed a court order to visit the defendant weekly). (ECF No. 27-30 at 3.) Based on the Nevada Supreme Court’s holding, which discusses Keller’s pro se motion and issues with his court-appointed counsel’s investigator, this Court finds that two of the three above-mentioned facts were addressed by the Nevada Supreme Court. This Court also finds that the remaining fact that Keller’s court-appointed counsel filed a motion to withdraw did not fundamentally alter the claim presented on direct appeal to the Nevada Supreme Court. This fact merely added further support for ground 2 and did not fundamentally alter the claim. The substance of the claim remained the same: Keller was denied his Sixth Amendment right to counsel because of an irreconcilable conflict with his court- appointed attorney. Ground 2 is exhausted. 3. Grounds 3 and 4 In ground 3, Keller argues that his counsel was ineffective for failing to include important facts and argue key legal issues in his motion to suppress the evidence found in his car and apartment. (ECF No. 20 at 11.) And in ground 4, as discussed previously, Keller argues that his trial counsel was ineffective for failing to request an adverse inference instruction based on the destruction of the body camera footage. (Id. at 12.) Keller argues that grounds 3 and 4 are technically exhausted but procedurally defaulted and that he can overcome the default under Martinez v. Ryan. (ECF No. 32 at 12.) A claim may be considered procedurally defaulted if “it is clear that the state court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). Keller would face several procedural bars if he were to return to state court. See, e.g., Nev. Rev. Stat. §§ 34.726 & 34.810. Nevada has cause and prejudice and fundamental miscarriage of justice exceptions to its procedural bars, which are substantially the same as the federal standards. If a petitioner has a potentially viable cause-and-prejudice or actual-innocence argument under the substantially similar federal and state standards, then petitioner cannot establish that “it is clear that the state court would hold the claim procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, the courts in this district have generally declined to find a claim subject to anticipatory procedural default unless the petitioner represents that he would be unable to establish cause and prejudice in a return to state court. In such a case, the claim would generally be subject to immediate dismissal as procedurally defaulted, as the petitioner would have conceded that he has no grounds for exception to the procedural default in federal court. A different situation is presented, however, where the Nevada state courts do not recognize a potential basis to overcome the procedural default arising from the violation of a state procedural rule that is recognized under federal law. In Martinez v. Ryan, the Supreme Court held that the absence or inadequate assistance of counsel in an initial-review collateral proceeding may be relied upon to establish cause excusing the procedural default of a claim of ineffective assistance of trial counsel. 566 U.S. 1, 9 (2012). The Nevada Supreme Court does not recognize Martinez as cause to overcome a state procedural bar under Nevada state law. Brown v. McDaniel, 331 P.3d 867, 875 (Nev. 2014). Thus, a Nevada habeas petitioner who relies upon Martinez—and only Martinez—as a basis for overcoming a state procedural bar on an unexhausted claim can successfully argue that the state courts would hold the claim procedurally barred but that he nonetheless has a potentially viable cause-and-prejudice argument under federal law that would not be recognized by the state courts when applying the state procedural bars. Here, Keller advances only Martinez as a basis for excusing the anticipatory default of grounds 3 and 4. (See ECF No. 32 at 12–14.) Accordingly, the Court considers grounds 3 and 4 to be technically exhausted and procedurally defaulted. Keller demonstrates cause under Martinez because he had no counsel during his initial-review collateral proceeding. Thus, this Court finds that Keller has arguably met three of the elements under Martinez: (1) he had no counsel during his initial-review collateral proceeding, (2) his state post-conviction petition was the initial proceeding regarding claims of ineffective assistance of trial counsel, and (3) Nevada law requires that a claim of ineffective of assistance of trial counsel be raised in a post-conviction habeas corpus proceeding. However, because the analysis of prejudice under Martinez to overcome the procedural default of grounds 3 and 4 is necessarily intertwined with the merits of those grounds, the Court defers a determination of the fourth element of Martinez: whether the claims of ineffective assistance of trial counsel are substantial. 4. Ground 5 In ground 5, Keller argues that the cumulative effect of the errors at trial violated his right to due process in violation of the Fifth, Sixth, and Fourteenth Amendments. (ECF No. 20 at 14.) Keller raised a cumulative trial-court-error claim on direct appeal. (See ECF No. 27-30 at 9–10.) And Keller raised a cumulative counsel-error claim during his post-conviction appeal. (See ECF No. 28-40 at 19.) However, as Respondents correctly note, Keller has not presented an all-encompassing cumulative error claim to the state courts. Keller contends that this Court should conduct a cumulative error analysis because “[t]he failure to undertake this analysis would contravene Supreme Court and Ninth Circuit precedent.” (ECF No. 32 at 15.) However, cumulative errors claims are not exempt from exhaustion requirements. See Wooten v. Kirkland, 540 F.3d 1019, 1026 (9th Cir. 2008). As such, this Court finds that ground 5 is unexhausted to the extent that it includes grounds 3 and 4, which were not presented within Keller’s direct appeal cumulative error claim. Accordingly, because Keller’s second-amended petition contains both exhausted and unexhausted claims, Keller has three options for going forward: (1) he may submit a sworn declaration voluntarily abandoning the unexhausted portion of ground 5, (2) he may return to state court to exhaust the unexhausted portion of ground 5, in which case his federal habeas petition will be denied without prejudice,2 or (3) he may file a motion asking this court to stay his exhausted federal habeas claims while he returns to state court to exhaust the unexhausted portion of ground 5.3 See Rose v. Lundy, 455 U.S. 509, 510 (1982) (holding that a federal court may not entertain a habeas petition unless the petitioner has exhausted available and adequate state court remedies with respect to all claims in the petition). It is therefore ordered that Respondents’ Motion (ECF No. 25) is denied as follows: (1) ground 4 relates back and is timely, (2) grounds 1 and 2 are exhausted, (3) grounds 3 and 4 are technically exhausted and procedurally defaulted, and (4) ground 5 is unexhausted to the extent that it includes grounds 3 and 4. The court defers consideration of whether Keller can demonstrate prejudice under Martinez v. Ryan to overcome the procedural default of grounds 3 and 4 until after the filing of an answer and reply in this action. It is further ordered that Keller has 30 days from the date of this order to inform the Court how he wishes to proceed on the unexhausted portion of ground 5 as outlined in this order. If Keller chooses to file a motion for a stay and abeyance or seek other appropriate relief, Respondents may respond according to Local Rule 7-2. It is further ordered that if Keller elects to abandon the unexhausted portion of ground 5, pursuant to this Court’s scheduling order [ECF No. 11], Respondents have 60 days from the date of abandonment in which to file an answer to the second-amended petition. Keller will then have 30 days following the filing of an answer to file a reply. 2This Court makes no assurances as to the timeliness of any future-filed petition. 3If Keller wishes to ask for a stay, he must file a motion for stay and abeyance in which he demonstrates good cause for his failure to exhaust his unexhausted claim in state court and presents argument regarding the question of whether or not his unexhausted claim is plainly meritless. 1 It is further ordered that the Clerk substitute Nethanjah Breitenbach for 2 Respondent Timothy Garrett. 3 4 5 DATED THIS 3'¢ day of January 2024. 6 7 en Apes Hassel

9 UNITED STATES DISTRICT JUDGE