Keller v. Garrett

• Court: District Court, D. Nevada
• Decided: January 3, 2024
• Docket: 3:22-cv-00481
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

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

5 Petitioner, v. ORDER DENYING 6 MOTION TO DISMISS NETHANJAH BREITENBACH,1 et al., 7 Respondents. 8

9 On August 9, 2023, counseled Petitioner Christopher Keller filed his 10 second-amended § 2254 petition. (ECF No. 20.) This matter comes before the 11 Court on Respondents’ motion to dismiss Keller’s second-amended petition. (ECF 12 No. 25.) Keller opposed the motion, and Respondents replied. (ECF Nos. 32, 33.) 13 For the reasons stated below, the Court denies the motion. 14 I. BACKGROUND 15 The Nevada Supreme Court described the crime, as revealed by the 16 evidence at the trial, as follows: 17 Inside Keller’s car, officers found 344.29 grams of 18 methamphetamine, 33.92 grams of heroin, .537 grams of cocaine, a mixture of the three controlled substances, and a gun. The quantity 19 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 20 as a gun, fairly indicated to the officers that Keller was trafficking in drugs. 21 (ECF No. 27-30 at 6.) A jury found Keller guilty of seven drug-related crimes and 22 two counts of ownership or possession of a firearm by a prohibited person. (ECF 23 No. 27-17.) Keller was sentenced to an aggregate term of life in prison with parole 24

25 1The state corrections department’s inmate locator page states that Keller is 26 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 27 substitute Nethanjah Breitenbach as a respondent for Respondent Timothy Garrett under Federal Rule of Civil Procedure 25(d). 28 1 eligibility after 20 years. (Id. at 5.) Keller’s amended judgment of conviction was 2 entered on December 12, 2017. (Id.) Keller appealed, and the Nevada Supreme 3 Court affirmed his judgment of conviction on October 15, 2018. (ECF No. 27-30.) 4 Remittitur issued on November 9, 2018. (ECF No. 27-31.) 5 Keller filed his pro se state post-conviction habeas petition on August 26, 6 2019. (ECF No. 27-37.) The state court denied Keller post-conviction relief on 7 November 2, 2020. (ECF No. 28-3.) Keller appealed, and the Nevada Court of 8 Appeals dismissed the appeal on September 28, 2021. (ECF No. 28-20.) 9 Remittitur issued on October 26, 2021. (ECF No. 28-21.) Following a motion to 10 amend the state court’s order, the state court issued a new order on April 11, 11 2022. (ECF No. 28-28.) Keller appealed, and the Nevada Court of Appeals affirmed 12 on September 9, 2022. (ECF No. 28-40.) Remittitur issued on October 4, 2022. 13 (ECF No. 28-41.) 14 In his instant second-amended petition, Keller presents the following 15 grounds for relief:

16 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 17 not appoint new counsel even though his trial counsel was conflicted. 18 3. His counsel failed to include important facts and argue key legal issues in his motion to suppress the evidence found in 19 his car and apartment. 4. His counsel failed to request an adverse inference instruction 20 based on the destruction of body camera footage. 5. There were cumulative errors. 21 22 (ECF No. 20.) 23 II. DISCUSSION 24 Respondents argue that (1) the second-amended petition is untimely and 25 ground 4 does not relate back to a timely-filed petition, and (2) grounds 1, 2, 3, 26 4, and 5 are unexhausted. (ECF No. 25.) 27 A. Relation back of ground 4 28 Respondents contend that only Keller’s original pro se federal petition and 1 counseled first-amended petition were timely, and ground 4 of his second- 2 amended petition does not relate back to either of those petitions because it 3 “differ[s] in both time and type.” (ECF No. 25 at 6–8.) Keller does not dispute that 4 his second-amended petition is untimely; rather, he contends that ground 4 of 5 his second-amended petition relates back to grounds 8 and 31 of his timely-filed 6 first-amended petition. (ECF No. 32 at 7.) 7 A new claim in an amended petition that is filed after the expiration of the 8 Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation 9 period will be timely only if the new claim relates back to a claim in a timely-filed 10 pleading on the basis that the claim arises out of “the same conduct, transaction 11 or occurrence” as a claim in the timely pleading. Mayle v. Felix, 545 U.S. 644 12 (2005). In Mayle, the United States Supreme Court held that habeas claims in an 13 amended petition do not arise out of “the same conduct, transaction or 14 occurrence” as claims in the original petition merely because the claims all 15 challenge the same trial, conviction, or sentence. Id. at 655–64. Rather, habeas 16 claims asserted in an amended petition relate back “only when the claims added 17 by amendment arise from the same core facts as the timely filed claims, and not 18 when the new claims depend upon events separate in ‘both time and type’ from 19 the originally raised episodes.” Id. at 657. In this regard, the reviewing court looks 20 to “the existence of a common ‘core of operative facts’ uniting the original and 21 newly asserted claims.” Id. at 659. A claim that merely adds “a new legal theory 22 tied to the same operative facts as those initially alleged” will relate back and be 23 timely. Id. at 659 n.5; Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 24 2013). 25 In ground 8 of his first-amended petition, Keller argued that his “trial 26 counsel was ineffective for failing to argue that the state improperly destroyed 27 evidence or lost evidence stemming from Officer J. Henry’s body camera being 28 lost.” (ECF No. at 12 at 22.) And in ground 31 of his first-amended petition, Keller 1 argued that his “appellate counsel was ineffective for failing to argue that the 2 district court erred by failing to dismiss the case with prejudice due to the lost 3 body camera video from Officer Henry, which would have verified Keller’s version 4 of the stopping and searches of Keller, his vehicle, and his home.” (Id. at 68.) 5 Comparatively, in ground 4 of his second-amended petition, Keller argues that 6 his trial counsel ineffectively failed to request an adverse inference instruction 7 based on the destruction of the body camera footage in violation of his Sixth and 8 Fourteenth Amendment rights. (ECF No. 20 at 12.) 9 This Court finds that ground 4 of the second-amended petition relates back 10 to grounds 8 and 31 of the first-amended petition. Although ground 4 of the 11 second-amended petition involves the failure to request an adverse inference 12 instruction, it still arises from the same core facts as grounds 8 and 31 of the 13 first-amended petition: his trial counsel erred regarding the spoilation of Officer 14 Henry’s body camera footage. Indeed, the inclusion of the failure to request a jury 15 instruction regarding the spoilation—rather than just failing to argue about the 16 spoilation—merely adds a new legal theory to the same operative facts as those 17 initially alleged. Accordingly, ground 4 of the second-amended petition is timely. 18 B. Exhaustion of grounds 1, 2, 3, 4, and 5 19 A state prisoner first must exhaust state court remedies on a habeas claim 20 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This 21 exhaustion requirement ensures that the state courts, as a matter of comity, will 22 have the first opportunity to address and correct alleged violations of federal 23 constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). 24 “A petitioner has exhausted his federal claims when he has fully and fairly 25 presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th 26 Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 27 2254(c) requires only that state prisoners give state courts a fair opportunity to 28 act on their claims.”)). 1 A petitioner must present the substance of his claim to the state courts, 2 and the claim presented to the state courts must be the substantial equivalent of 3 the claim presented to the federal court. Picard v. Connor, 404 U.S. 270, 278 4 (1971). The state courts have been afforded a sufficient opportunity to hear an 5 issue when the petitioner has presented the state court with the issue’s factual 6 and legal basis. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also 7 Scott v. Schriro, 567 F.3d 573, 582–83 (9th Cir. 2009) (“Full and fair presentation 8 additionally requires a petitioner to present the substance of his claim to the state 9 courts, including a reference to a federal constitutional guarantee and a 10 statement of facts that entitle the petitioner to relief.”). A petitioner may 11 reformulate his claims so long as the substance of his argument remains the 12 same. Picard, 404 U.S. at 277–78. 13 1. Ground 1 14 In ground 1, Keller argues that the district court violated his right to 15 counsel of choice in violation of the Sixth and Fourteenth Amendments. (ECF No. 16 20 at 5.) Keller explains that he retained an attorney to replace his court- 17 appointed attorney, but the trial court would not allow the substitution because 18 doing so would have required a continuance. (Id.) Keller also included the 19 following five facts: (1) he had expressed dissatisfaction and lack of confidence in 20 his court-appointed attorney, (2) his court-appointed attorney had attempted to 21 withdraw as counsel, (3) his retained counsel had notified chambers of her 22 representation of Keller, (4) his court-appointed attorney explained to the court 23 that he lacked sufficient time to consult with Keller, and (5) the trial court erred 24 because Keller was facing a life sentence. (Id.) 25 Respondents contend that while ground 1 is based on similar facts as 26 claims presented during Keller’s direct appeal, it has been fundamentally altered 27 due to the addition of new legal allegations. (ECF No. 25 at 9.) Specifically, 28 Respondents contend that Keller’s five facts outlined above were not alleged 1 before the state courts. (Id.) 2 In his opening brief on direct appeal to the Nevada Supreme Court, Keller 3 argued that “the district court erred in not allowing a continuance and to allow 4 [Keller’s retained counsel] to substitute in as counsel.” (ECF No. 27-19.) Within 5 this ground for relief, Keller explained that he and his court-appointed counsel 6 “had a breakdown in communication” and he “even filed a bar complaint.” (Id.) 7 The Nevada Supreme Court then thoroughly addressed this argument in its order 8 of affirmance. (See ECF No. 27-30 at 2–5.) 9 This Court finds that the five above-mentioned facts did not fundamentally 10 alter the claim presented on direct appeal to the Nevada Supreme Court. These 11 facts simply added details to support ground 1 and did not fundamentally alter 12 the claim. The substance of the claim remained the same: the trial court violated 13 Keller’s right to choice of counsel by not allowing his retained counsel to 14 substitute in because doing so would have meant continuing the trial. 15 Ground 1 is exhausted. 16 2. Ground 2 17 In ground 2, Keller argues that he was denied his right to counsel when 18 the trial court did not appoint new counsel even though his trial counsel was 19 conflicted in violation of the Fifth, Sixth, and Fourteenth Amendment. (ECF No. 20 20 at 7.) In support of this claim, Keller gave the following facts: (1) he filed a pro 21 se motion asking the court to appoint different counsel, (2) two months later, his 22 court-appointed counsel filed a motion to withdraw as counsel, explaining he had 23 difficulty communicating with Keller and Keller refused to speak to him, and (3) 24 at a subsequent hearing, Keller’s court-appointed attorney explained that Keller 25 no longer wanted to see the investigator that had been hired. (Id.) 26 Respondents contend that while ground 2 is based on similar facts as 27 claims presented during Keller’s direct appeal, it has been fundamentally altered 28 due to the addition of new legal allegations. (ECF No. 25 at 10.) Specifically, 1 Respondents contend that Keller’s three facts outlined above were not alleged 2 before the state courts. (Id.) Respondents also argue that ground 2 may not have 3 been federalized. (Id.) 4 Regarding whether ground 2 has been federalized, the Nevada Supreme 5 Court cited federal law in deciding this claim during Keller’s direct appeal 6 proceedings. (See ECF No. 27-30 at 2–3 (citing United States v. Moore, 159 F.3d 7 1154, 1158–1159 (9th Cir. 1998) (discussing the factors to consider regarding a 8 claim that the petitioner was denied his Sixth Amendment right to counsel 9 because of an irreconcilable conflict between himself and his attorney)).) Because 10 the Nevada Supreme Court decided the federal claim during Keller’s direct appeal, 11 ground 2 is exhausted in that regard. See Casey v. Moore, 386 F.3d 896, 916 12 n.18 (9th Cir. 2004) (“[A] claim is exhausted if the State’s highest court expressly 13 addresses the claim, whether or not it was fairly presented.”). 14 Turning to Respondents’ former argument, in the affirmance of Keller’s 15 judgment of conviction, the Nevada Supreme Court held as follows:

16 While Keller previously moved to dismiss his appointed counsel over eight months before trial and had field a bar complaint against him, 17 Keller’s primary conflict with his appointed counsel at the time of trial was counsel’s use of an investigator Keller disliked. Keller’s 18 objection to appointed counsel’s choice of investigator and a newfound ability to afford private counsel shortly before trial do not 19 constitute an irreconcilable conflict. Compare Brinkley v. State, 101 Nev. 676, 678–79, 708 P.2d 1026, 1028 (1985) (characterizing 20 reasons for substituting counsel as “unnoteworthy” when due to displeasure with a lack of communication and a newfound ability to 21 afford private counsel), and Rimer v. State, 131 Nev. 307, 327, 351 P.3d 697, 711–712 (2015) (denying motion to substitute counsel 22 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 23 (holding that there was “strong evidence of an irreconcilable conflict” where defendant complained about counsel five times to the court, 24 moved to substitute counsel twice, and counsel disobeyed a court order to visit the defendant weekly). 25 (ECF No. 27-30 at 3.) 26 Based on the Nevada Supreme Court’s holding, which discusses Keller’s 27 pro se motion and issues with his court-appointed counsel’s investigator, this 28 1 Court finds that two of the three above-mentioned facts were addressed by the 2 Nevada Supreme Court. This Court also finds that the remaining fact that Keller’s 3 court-appointed counsel filed a motion to withdraw did not fundamentally alter 4 the claim presented on direct appeal to the Nevada Supreme Court. This fact 5 merely added further support for ground 2 and did not fundamentally alter the 6 claim. The substance of the claim remained the same: Keller was denied his Sixth 7 Amendment right to counsel because of an irreconcilable conflict with his court- 8 appointed attorney. 9 Ground 2 is exhausted. 10 3. Grounds 3 and 4 11 In ground 3, Keller argues that his counsel was ineffective for failing to 12 include important facts and argue key legal issues in his motion to suppress the 13 evidence found in his car and apartment. (ECF No. 20 at 11.) And in ground 4, 14 as discussed previously, Keller argues that his trial counsel was ineffective for 15 failing to request an adverse inference instruction based on the destruction of the 16 body camera footage. (Id. at 12.) Keller argues that grounds 3 and 4 are 17 technically exhausted but procedurally defaulted and that he can overcome the 18 default under Martinez v. Ryan. (ECF No. 32 at 12.) 19 A claim may be considered procedurally defaulted if “it is clear that the 20 state court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 21 F.3d 371, 376 (9th Cir. 2002). Keller would face several procedural bars if he were 22 to return to state court. See, e.g., Nev. Rev. Stat. §§ 34.726 & 34.810. Nevada has 23 cause and prejudice and fundamental miscarriage of justice exceptions to its 24 procedural bars, which are substantially the same as the federal standards. If a 25 petitioner has a potentially viable cause-and-prejudice or actual-innocence 26 argument under the substantially similar federal and state standards, then 27 petitioner cannot establish that “it is clear that the state court would hold the 28 claim procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, the 1 courts in this district have generally declined to find a claim subject to 2 anticipatory procedural default unless the petitioner represents that he would be 3 unable to establish cause and prejudice in a return to state court. In such a case, 4 the claim would generally be subject to immediate dismissal as procedurally 5 defaulted, as the petitioner would have conceded that he has no grounds for 6 exception to the procedural default in federal court. 7 A different situation is presented, however, where the Nevada state courts 8 do not recognize a potential basis to overcome the procedural default arising from 9 the violation of a state procedural rule that is recognized under federal law. In 10 Martinez v. Ryan, the Supreme Court held that the absence or inadequate 11 assistance of counsel in an initial-review collateral proceeding may be relied upon 12 to establish cause excusing the procedural default of a claim of ineffective 13 assistance of trial counsel. 566 U.S. 1, 9 (2012). The Nevada Supreme Court does 14 not recognize Martinez as cause to overcome a state procedural bar under Nevada 15 state law. Brown v. McDaniel, 331 P.3d 867, 875 (Nev. 2014). Thus, a Nevada 16 habeas petitioner who relies upon Martinez—and only Martinez—as a basis for 17 overcoming a state procedural bar on an unexhausted claim can successfully 18 argue that the state courts would hold the claim procedurally barred but that he 19 nonetheless has a potentially viable cause-and-prejudice argument under federal 20 law that would not be recognized by the state courts when applying the state 21 procedural bars. 22 Here, Keller advances only Martinez as a basis for excusing the anticipatory 23 default of grounds 3 and 4. (See ECF No. 32 at 12–14.) Accordingly, the Court 24 considers grounds 3 and 4 to be technically exhausted and procedurally 25 defaulted. Keller demonstrates cause under Martinez because he had no counsel 26 during his initial-review collateral proceeding. Thus, this Court finds that Keller 27 has arguably met three of the elements under Martinez: (1) he had no counsel 28 during his initial-review collateral proceeding, (2) his state post-conviction 1 petition was the initial proceeding regarding claims of ineffective assistance of 2 trial counsel, and (3) Nevada law requires that a claim of ineffective of assistance 3 of trial counsel be raised in a post-conviction habeas corpus proceeding. However, 4 because the analysis of prejudice under Martinez to overcome the procedural 5 default of grounds 3 and 4 is necessarily intertwined with the merits of those 6 grounds, the Court defers a determination of the fourth element of Martinez: 7 whether the claims of ineffective assistance of trial counsel are substantial. 8 4. Ground 5 9 In ground 5, Keller argues that the cumulative effect of the errors at trial 10 violated his right to due process in violation of the Fifth, Sixth, and Fourteenth 11 Amendments. (ECF No. 20 at 14.) Keller raised a cumulative trial-court-error 12 claim on direct appeal. (See ECF No. 27-30 at 9–10.) And Keller raised a 13 cumulative counsel-error claim during his post-conviction appeal. (See ECF No. 14 28-40 at 19.) However, as Respondents correctly note, Keller has not presented 15 an all-encompassing cumulative error claim to the state courts. 16 Keller contends that this Court should conduct a cumulative error analysis 17 because “[t]he failure to undertake this analysis would contravene Supreme 18 Court and Ninth Circuit precedent.” (ECF No. 32 at 15.) However, cumulative 19 errors claims are not exempt from exhaustion requirements. See Wooten v. 20 Kirkland, 540 F.3d 1019, 1026 (9th Cir. 2008). As such, this Court finds that 21 ground 5 is unexhausted to the extent that it includes grounds 3 and 4, which 22 were not presented within Keller’s direct appeal cumulative error claim. 23 Accordingly, because Keller’s second-amended petition contains both 24 exhausted and unexhausted claims, Keller has three options for going forward: 25 (1) he may submit a sworn declaration voluntarily abandoning the unexhausted 26 portion of ground 5, (2) he may return to state court to exhaust the unexhausted 27 portion of ground 5, in which case his federal habeas petition will be denied 28 1 without prejudice,2 or (3) he may file a motion asking this court to stay his 2 exhausted federal habeas claims while he returns to state court to exhaust the 3 unexhausted portion of ground 5.3 See Rose v. Lundy, 455 U.S. 509, 510 (1982) 4 (holding that a federal court may not entertain a habeas petition unless the 5 petitioner has exhausted available and adequate state court remedies with 6 respect to all claims in the petition). 7 III. CONCLUSION 8 It is therefore ordered that Respondents’ Motion (ECF No. 25) is denied as 9 follows: (1) ground 4 relates back and is timely, (2) grounds 1 and 2 are 10 exhausted, (3) grounds 3 and 4 are technically exhausted and procedurally 11 defaulted, and (4) ground 5 is unexhausted to the extent that it includes grounds 12 3 and 4. The court defers consideration of whether Keller can demonstrate 13 prejudice under Martinez v. Ryan to overcome the procedural default of grounds 14 3 and 4 until after the filing of an answer and reply in this action. 15 It is further ordered that Keller has 30 days from the date of this order to 16 inform the Court how he wishes to proceed on the unexhausted portion of ground 17 5 as outlined in this order. If Keller chooses to file a motion for a stay and 18 abeyance or seek other appropriate relief, Respondents may respond according 19 to Local Rule 7-2. 20 It is further ordered that if Keller elects to abandon the unexhausted 21 portion of ground 5, pursuant to this Court’s scheduling order [ECF No. 11], 22 Respondents have 60 days from the date of abandonment in which to file an 23 answer to the second-amended petition. Keller will then have 30 days following 24 the filing of an answer to file a reply. 25 2This Court makes no assurances as to the timeliness of any future-filed petition. 26 3If Keller wishes to ask for a stay, he must file a motion for stay and abeyance in 27 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 28 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 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28