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5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 TERRANCE L. LAVOLL, Case No.: 2:19-cv-02249-GMN-EJY
9 Petitioner Order Granting Motion to Dismiss
10 v. (ECF No. 49) 11 JERRY HOWELL, et al.,
12 Respondents.
13 In his 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus Terrance L. Lavoll 14 challenges his conviction for sexual assault and solicitation of minors. (ECF No. 17.) In 15 the claims remaining before the Court he alleges trial court error and that his trial 16 counsel was ineffective. Respondents have filed a Motion to Dismiss arguing that 17 Ground 1 is procedurally barred. (ECF No. 49.) Because Ground 1 is procedurally 18 barred and Lavoll cannot demonstrate cause and prejudice to overcome the default, 19 Ground 1 is dismissed. 20 I. Background 21
In October 1997, an Eighth Judicial District (Clark County) jury convicted Lavoll 22 of one count of Sexual Assault of a Minor under 16, two counts of Sexual Assault of a 23 Minor under 16 with a Deadly Weapon, and one count of Solicitation of Minor to Engage 1 in Acts Constituting Crimes Against Nature. (Exhibit 16.)1 The state district court 2 sentenced Lavoll to terms that amount to 60 years to life. (Exh. 21.) Judgment of 3 Conviction was entered on January 6, 1998. Id. 4 The Nevada Supreme Court affirmed Lavoll’s convictions in April 2000 and
5 affirmed the denial of his state postconviction habeas corpus petition in November 6 2007. (Exhs. 52, 99.) In November 2010, this Court denied Lavoll’s first federal habeas 7 petition on the merits. (Case No. 2:08-cv-00011-PMP, ECF No. 42.) 8 In July 2012, an Amended Judgment of Conviction was entered that added a 9 special sentence of lifetime supervision. (Exh. 101.) In March 2018, Lavoll filed a 10 second state postconviction petition. (Exh. 103.) The state appellate court affirmed the 11 denial of that petition as procedurally barred in May 2019. (Exh. 123.) 12 Lavoll dispatched his current Federal Habeas Corpus Petition for filing in 13 November 2019. (ECF No. 1). This Court granted his Motion for Appointment of 14 Counsel, and he ultimately filed a counseled First Amended Petition in February 2021.
15 (ECF Nos.12, 17). Lavoll raised four claims: 16 Ground 1: Lavoll was denied the right to choose whether to concede guilt at trial in violation of his right to choose the objective 17 of the defense under the Sixth and Fourteenth Amendments.
18 Ground 2: Lavoll’s trail counsel was ineffective in violation of his Sixth and Fourteenth Amendment rights for failing to object to the 19 prosecution’s inflammatory statements in closing arguments.
20 Ground 3: Lavoll’s Fifth and Fourteenth Amendment due process rights were violated because the judgment does not indicate a 21 minimum term of his sentence.
23 1 Exhibits referenced in this order are exhibits to Respondents’ First Motion to Dismiss, ECF No. 19, and Second Motion to Dismiss, ECF No. 49, and are found at ECF Nos. 20-22, 50. 1 Ground 4: Lavoll’s Fifth, Sixth, and Fourteenth Amendment rights to be present was violated when the state district court sentenced him 2 in his absence.
3 (ECF No. 17.) 4 Respondents filed their first Motion to Dismiss in April 2021. (ECF No. 19.) The 5 Court dismissed Grounds 3 and 4 as procedurally barred. (ECF No. 34.) The Court 6 held that Ground 1 was unexhausted and also deferred a decision on whether Ground 2 7 is procedurally barred from federal review to the merits adjudication. The Court granted 8 Lavoll a stay of these proceedings, and he filed a (third) successive habeas petition in 9 state court in December 2022, in an effort to exhaust Ground 1. (ECF No. 43; Exh. 125.) 10 In September 2023, the Nevada Court of Appeals affirmed the denial of the third state 11 petition as untimely, an abuse of the writ, and based on laches. (Exh. 138.) The 12 appellate court rejected Lavoll’s arguments that he could overcome the state procedural 13 bars. This Court reopened this case, and Respondents now move to dismiss Ground 1 14 as procedurally defaulted. (ECF No. 49.)2 15 II. Discussion 16 17 “Procedural default” refers to the situation where a petitioner in fact presented a 18 claim to the state courts, but the state courts disposed of the claim on procedural 19 grounds, instead of on the merits. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 20 A federal court will not review a claim for habeas corpus relief if the decision of the state 21 court regarding that claim rested on a state law ground that is independent of the 22 federal question and adequate to support the judgment. Id. 23
2 Lavoll opposed, and Respondents replied. (ECF Nos. 51, 54.) 1 The Coleman Court explained the effect of a procedural default: 2 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state 3 procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a 4 result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 5 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). 6 The procedural default doctrine ensures that the state’s interest in correcting its own 7 mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 8 1039, 1046 (9th Cir. 2003). 9 To demonstrate cause for a procedural default, the petitioner must be able to 10 “show that some objective factor external to the defense impeded” his efforts to comply 11 with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). The external 12 impediment must have prevented the petitioner from raising the claim. See McCleskey 13 v. Zant, 499 U.S. 467, 497 (1991). 14 Ground 1 is procedurally barred from federal habeas review. 15 In Ground 1 Lavoll argues that he was denied the right to choose whether to 16 concede guilt at trial in violation of his right to choose the objective of the defense under 17 the Sixth and Fourteenth Amendments. (ECF No. 17 at 7-10.) He argues that his 18 counsel conceded during closing arguments that Lavoll was guilty of the lesser offense 19 of statutory sexual seduction though Lavoll never agreed to this concession. 20 Lavoll relies on McCoy v. Louisiana, where the Supreme Court held that defense 21 counsel’s concession of guilt, when the accused wished to maintain his innocence, 22 violated the accused’s Sixth Amendment right to choose the objective of the defense. 23 138 S.Ct. 1500 (2018). In McCoy the Court explained that “[b]ecause a client’s 1 autonomy, not counsel’s competence, is in issue, we do not apply our ineffective- 2 assistance-of-counsel jurisprudence, Strickland v. Washington, 466 U.S. 668 (1984), or 3 United States v. Chronic, 466 U.S. 648 (1984) . . . .” Id. at 1510-1511. 4 Lavoll presented this claim to the state courts in his third state postconviction
5 petition. (Exhs. 125.) He also argued that McCoy provided him good cause to file the 6 untimely and successive state petition.
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5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 TERRANCE L. LAVOLL, Case No.: 2:19-cv-02249-GMN-EJY
9 Petitioner Order Granting Motion to Dismiss
10 v. (ECF No. 49) 11 JERRY HOWELL, et al.,
12 Respondents.
13 In his 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus Terrance L. Lavoll 14 challenges his conviction for sexual assault and solicitation of minors. (ECF No. 17.) In 15 the claims remaining before the Court he alleges trial court error and that his trial 16 counsel was ineffective. Respondents have filed a Motion to Dismiss arguing that 17 Ground 1 is procedurally barred. (ECF No. 49.) Because Ground 1 is procedurally 18 barred and Lavoll cannot demonstrate cause and prejudice to overcome the default, 19 Ground 1 is dismissed. 20 I. Background 21
In October 1997, an Eighth Judicial District (Clark County) jury convicted Lavoll 22 of one count of Sexual Assault of a Minor under 16, two counts of Sexual Assault of a 23 Minor under 16 with a Deadly Weapon, and one count of Solicitation of Minor to Engage 1 in Acts Constituting Crimes Against Nature. (Exhibit 16.)1 The state district court 2 sentenced Lavoll to terms that amount to 60 years to life. (Exh. 21.) Judgment of 3 Conviction was entered on January 6, 1998. Id. 4 The Nevada Supreme Court affirmed Lavoll’s convictions in April 2000 and
5 affirmed the denial of his state postconviction habeas corpus petition in November 6 2007. (Exhs. 52, 99.) In November 2010, this Court denied Lavoll’s first federal habeas 7 petition on the merits. (Case No. 2:08-cv-00011-PMP, ECF No. 42.) 8 In July 2012, an Amended Judgment of Conviction was entered that added a 9 special sentence of lifetime supervision. (Exh. 101.) In March 2018, Lavoll filed a 10 second state postconviction petition. (Exh. 103.) The state appellate court affirmed the 11 denial of that petition as procedurally barred in May 2019. (Exh. 123.) 12 Lavoll dispatched his current Federal Habeas Corpus Petition for filing in 13 November 2019. (ECF No. 1). This Court granted his Motion for Appointment of 14 Counsel, and he ultimately filed a counseled First Amended Petition in February 2021.
15 (ECF Nos.12, 17). Lavoll raised four claims: 16 Ground 1: Lavoll was denied the right to choose whether to concede guilt at trial in violation of his right to choose the objective 17 of the defense under the Sixth and Fourteenth Amendments.
18 Ground 2: Lavoll’s trail counsel was ineffective in violation of his Sixth and Fourteenth Amendment rights for failing to object to the 19 prosecution’s inflammatory statements in closing arguments.
20 Ground 3: Lavoll’s Fifth and Fourteenth Amendment due process rights were violated because the judgment does not indicate a 21 minimum term of his sentence.
23 1 Exhibits referenced in this order are exhibits to Respondents’ First Motion to Dismiss, ECF No. 19, and Second Motion to Dismiss, ECF No. 49, and are found at ECF Nos. 20-22, 50. 1 Ground 4: Lavoll’s Fifth, Sixth, and Fourteenth Amendment rights to be present was violated when the state district court sentenced him 2 in his absence.
3 (ECF No. 17.) 4 Respondents filed their first Motion to Dismiss in April 2021. (ECF No. 19.) The 5 Court dismissed Grounds 3 and 4 as procedurally barred. (ECF No. 34.) The Court 6 held that Ground 1 was unexhausted and also deferred a decision on whether Ground 2 7 is procedurally barred from federal review to the merits adjudication. The Court granted 8 Lavoll a stay of these proceedings, and he filed a (third) successive habeas petition in 9 state court in December 2022, in an effort to exhaust Ground 1. (ECF No. 43; Exh. 125.) 10 In September 2023, the Nevada Court of Appeals affirmed the denial of the third state 11 petition as untimely, an abuse of the writ, and based on laches. (Exh. 138.) The 12 appellate court rejected Lavoll’s arguments that he could overcome the state procedural 13 bars. This Court reopened this case, and Respondents now move to dismiss Ground 1 14 as procedurally defaulted. (ECF No. 49.)2 15 II. Discussion 16 17 “Procedural default” refers to the situation where a petitioner in fact presented a 18 claim to the state courts, but the state courts disposed of the claim on procedural 19 grounds, instead of on the merits. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 20 A federal court will not review a claim for habeas corpus relief if the decision of the state 21 court regarding that claim rested on a state law ground that is independent of the 22 federal question and adequate to support the judgment. Id. 23
2 Lavoll opposed, and Respondents replied. (ECF Nos. 51, 54.) 1 The Coleman Court explained the effect of a procedural default: 2 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state 3 procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a 4 result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 5 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). 6 The procedural default doctrine ensures that the state’s interest in correcting its own 7 mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 8 1039, 1046 (9th Cir. 2003). 9 To demonstrate cause for a procedural default, the petitioner must be able to 10 “show that some objective factor external to the defense impeded” his efforts to comply 11 with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). The external 12 impediment must have prevented the petitioner from raising the claim. See McCleskey 13 v. Zant, 499 U.S. 467, 497 (1991). 14 Ground 1 is procedurally barred from federal habeas review. 15 In Ground 1 Lavoll argues that he was denied the right to choose whether to 16 concede guilt at trial in violation of his right to choose the objective of the defense under 17 the Sixth and Fourteenth Amendments. (ECF No. 17 at 7-10.) He argues that his 18 counsel conceded during closing arguments that Lavoll was guilty of the lesser offense 19 of statutory sexual seduction though Lavoll never agreed to this concession. 20 Lavoll relies on McCoy v. Louisiana, where the Supreme Court held that defense 21 counsel’s concession of guilt, when the accused wished to maintain his innocence, 22 violated the accused’s Sixth Amendment right to choose the objective of the defense. 23 138 S.Ct. 1500 (2018). In McCoy the Court explained that “[b]ecause a client’s 1 autonomy, not counsel’s competence, is in issue, we do not apply our ineffective- 2 assistance-of-counsel jurisprudence, Strickland v. Washington, 466 U.S. 668 (1984), or 3 United States v. Chronic, 466 U.S. 648 (1984) . . . .” Id. at 1510-1511. 4 Lavoll presented this claim to the state courts in his third state postconviction
5 petition. (Exhs. 125.) He also argued that McCoy provided him good cause to file the 6 untimely and successive state petition. The state district court rejected the good cause 7 argument, finding that even if it accepted Lavoll’s position that McCoy gave him good 8 cause to file a successive state postconviction petition after it was decided in 2018, he 9 provided no explanation or authority as to why the state courts should allow him to file 10 the petition four years after the McCoy decision. (Exh. 131.) The court further rejected 11 the argument that Lavoll would be prejudiced by the court not considering his McCoy 12 claim. The court pointed out that in 2007 the Nevada Supreme Court affirmed the 13 denial of the claim in Lavoll’s first state petition that trial counsel was ineffective for 14 conceding guilt, finding that Lavoll failed to demonstrate deficiency or prejudice. So the
15 state district court concluded that Lavoll could not show he would be prejudiced by the 16 court not considering his McCoy claim. 17 The Nevada Court of Appeals affirmed the denial of the successive state petition 18 as procedurally defaulted because it was untimely under NRS 34.726, an abuse of the 19 writ in violation of NRS 34.810, and barred by laches under NRS 34.800. (Exh. 138.) 20 The appellate court stated that Lavoll failed to demonstrate good cause because he did 21 not explain why he waited more than four years after the McCoy decision was issued to 22 file the second state petition. So Respondents argue that federal Ground 1 is now also 23 procedurally barred from federal habeas review. (ECF No. 49 at 4-5.) 1 The Ninth Circuit Court of Appeals has held that, at least in non-capital cases, 2 application of the procedural bars at issue in this case are independent and adequate 3 state grounds. Vang v. Nevada, 329 F.3d 1069, 1073-75 (9th Cir. 2003); see also 4 Bargas v. Burns, 179 F.3d 1207, 1210-12 (9th Cir. 1999). Respondents argue that the
5 Nevada Court of Appeal’s determination that federal ground 1 was procedurally barred 6 under NRS 34.726, 34.810 and 34.800 were independent and adequate grounds to 7 affirm the denial of the claims in the state petition. 8 Lavoll argues that the manner in which the state appellate court applied the time 9 bar in his case was not clear and well-established. (ECF No 51 at 5-8.) But NRS 10 34.726 is an adequate state procedural bar. Williams v. Filson, 908 F.3d 546, 577-80 11 (9th Cir. 2018); Loveland v. Hatcher, 231 F.3d 640, 643-44 (9th Cir. 2000); Moran v. 12 McDaniel, 80 F.3d 1261 (9th Cir. 1996) (holding that the Nevada Supreme Court has 13 consistently applied the state rule prohibiting review of the merits of an untimely claim 14 unless the petitioner demonstrates cause). Further, the state appellate court also held
15 that Lavoll’s third state petition was procedurally barred as an abuse of the writ and by 16 laches. In any event, it is now clear that McCoy v. Louisiana is not retroactive to cases 17 on collateral review. Christian v. Thomas, 982 F.3d 1215, 1225 (9th Cir. 2020). So 18 Lavoll would not be able to demonstrate prejudice to overcome procedural bars. 19 Lavoll also argues that he can overcome the default under Martinez v. Ryan. 566 20 U.S. 1 (2012). In Martinez, the Supreme Court held that the failure of a court to appoint 21 counsel, or the ineffective assistance of counsel in a state postconviction proceeding, 22 may establish cause to overcome a procedural default in specific, narrowly-defined 23 1 circumstances. The Court explained that Martinez established a “narrow exception” to 2 the Coleman rule: 3 Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural 4 default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, 5 there was no counsel or counsel in that proceeding was ineffective.
6 Id. at 17. 7 But as Respondents point out, Ground 1 is not a claim of ineffective assistance of 8 trial counsel, the only type of claim to which the narrow exception established in 9 Martinez may apply. Lavoll asks this Court to expand Martinez’s reach to an underlying 10 substantive claim of trial error. But the Martinez Court repeatedly stressed the limited 11 nature of its holding. (See id. at 15 (“this limited qualification of Coleman”); at 16 (“[t]he 12 rule of Coleman governs in all but the limited circumstances recognized here”). 13 Moreover, this claim was raised in Lavoll’s third state petition, not an initial-review 14 collateral proceeding. But the holding in Martinez “does not concern attorney errors in 15 other kinds of proceedings, including appeals from initial-review collateral proceedings 16 [or] second or successive collateral proceedings.” (Id. at 16.) Lavoll cannot rely on 17 Martinez to overcome the default of the McCoy claim. And, again, McCoy is not 18 retroactive to cases on collateral review. Christian, 982 F.3d at 1215. Accordingly, 19 Ground 1 is dismissed. 20 21 22 23 lil. Conclusion 2 3 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 49) is 4|| GRANTED. Ground 1 is dismissed. 5 It is further ordered that Respondents have 45 days from the date this Order is 6|| entered to file an Answer to Ground 2, the claim that remains before the Court. 7 It is further ordered that Petitioner will then have 45 days to file a Reply. 8 9 DATED: 4 March 2025. ‘jh, 10 GLORIA g At ioe UNITED Sta ES DISTRICT JUDGE
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