Matthew Myers v. John Henley, et al.

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3

4 MATTHEW MYERS, Case No. 3:23-cv-00293-ART-CLB

5 Petitioner, ORDER

6 v.

7 JOHN HENLEY, et al.,

8 Respondents.

9 10 This counseled habeas matter comes before the Court on Respondents’ 11 motion to dismiss Petitioner Matthew Myers’s First-Amended Petition for a Writ 12 of Habeas Corpus. (ECF No. 42.) Myers opposed the motion, and Respondents 13 filed a reply in support of the motion. (ECF Nos. 48; 56.) For the reasons stated 14 below, the Court denies the motion to dismiss the First-Amended Petition. 15 I. BACKGROUND 16 A jury in Clark County, Nevada, convicted Myers of 33 counts of theft 17 under NRS §§ 205.0832 and 205.0835 and 33 counts of exploitation of an 18 older/vulnerable person under NRS §§ 200.5092 and 200.5099. (ECF No. 37-34 19 at 2–5.) Myers was sentenced to an aggregate of 10 to 30 years in prison. (ECF 20 No. 37-14.) At Myers’s trial, the State presented the following evidence, as 21 summarized by the Nevada Court of Appeals:

22 Friederike Willard and her husband, James Willard, owned several Las Vegas area properties, including an apartment complex 23 in Henderson known as the Oceanside Apartments (“Oceanside”). James had a physical therapist named Doug Lancaster. Doug 24 introduced the Willards to his wife, Rita Lancaster, a CPA. In 2003, Rita began handling the Willards’ tax preparation. 25 Myers lived at Oceanside and formed a relationship with the 26 Willards. In 2005, the Willards hired Myers to help manage Oceanside. In exchange, the Willards allowed Myers to live at 27 Oceanside rent-free, and they occasionally paid for his groceries and for Friederike. In March 2014, Friederike added Doug, and Doug and 1 Rita’s children, as beneficiaries in her will. Friederike did not, however, include Rita as a beneficiary. [Footnote: James and 2 Friederike did not have any children.]

3 Beginning in 2011, Myers began assisting Friederike by managing the bills and collecting the rents for Oceanside. Myers also 4 helped Friederike manage her personal expenses. Friederike authorized a credit card connected to the Oceanside accounts for 5 Myers to use for Oceanside expenses. Myers and Friederike were the only people with access to these accounts. From 2011 to 2013, 6 Myers provided Rita with the information necessary to complete Friederike's taxes. In March 2014, Friederike executed a power of 7 attorney to Myers and added him as a beneficiary in her will.

8 In October 2014, Rita prepared Friederike’s 2013 tax return. For 2013, Friederike had a tax liability of approximately $130,000 9 because she sold properties, including Oceanside. When Rita contacted Friederike’s financial advisor to settle the tax liability, Rita 10 expected Friederike to have over $1,000,000 in her account from the property sales. However, Rita learned that Friederike’s account 11 balance was only around $350,000.

12 Rita, with Friederike’s authorization, froze all of Friederike’s accounts and obtained statements dating back to 2011. Rita then 13 analyzed all the transactions between 2011 and 2014 and reconciled every bank and credit card statement. During this process, Rita 14 discovered several suspicious transactions. Rita spoke to Friederike to determine whether she authorized the transactions. Friederike 15 told Rita that many of the transactions were not authorized. In total, Rita calculated that between 2011 and 2014, approximately 16 $813,000 of Friederike's money had been used in unauthorized transfers or transactions. Rita believed that Myers stole the funds. 17 When Rita alerted Friederike of this, Friederike removed 18 Myers from her will and revoked his power of attorney. Rita submitted Friederike’s financial records and her analysis to the Las 19 Vegas Metropolitan Police Department (LVMPD). A forensic legal auditor reviewed and confirmed Rita’s calculations and compared 20 them to bank statements for Myers and his daughter. The auditor confirmed that various bank transfers were made from Friederike’s 21 account to Myers and his daughter. The auditor agreed that approximately $813,000 of Friederike’s funds had been used in 22 numerous unauthorized transfers and transactions.

23 As a result, the State charged Myers with 36 counts of theft and 36 counts of exploitation of an older/vulnerable person. During 24 discovery, Myers learned that Doug inherited property from a different elderly physical therapy client. The State thereafter 25 discovered that Myers intended to cross-examine Rita about this inheritance to show bias. Specifically, Myers wished to show that 26 because Doug was also a beneficiary under Friederike’s will, his wife, Rita, was biased because she would indirectly benefit from the 27 probable inheritance. The State moved to preclude this line of cross- therefore, would be an improper method to impeach Rita because it 1 would confuse the jurors about whose guilt was at issue. Myers opposed, arguing that the issue went to Rita’s credibility and was 2 therefore relevant. The district court found that questions about Doug’s inheritance from the third party were not relevant to the 3 issue of Myers’s guilt and had the potential to mislead the jury and confuse the issues. The district court did not say, at the hearing or 4 in its order, that it found the proposed cross-examination questions would be collateral and extrinsic. 5 On the first day of the jury trial, before jury selection, Myers 6 argued that he should be allowed to ask Doug about the inheritance from the third party because it showed Doug’s bias and motive. The 7 district court disagreed, again concluding that the evidence was not relevant. As a result, during trial, Myers did not ask Rita or Doug 8 about Doug’s other inheritance, but did question them as to Doug’s status as a beneficiary in Friederike’s will. After a five-day trial, the 9 jury convicted Myers of 33 counts of theft under NRS 205.0832 and NRS 205.0835 and 33 counts of exploitation of an older/vulnerable 10 person under NRS 200.5092 and NRS 200.5099. 11 (ECF No. 37-34 at 2–5 (footnotes omitted, except as indicated).) Myers’s appeal 12 was unsuccessful as was his state postconviction petition. (ECF Nos. 37-34; 38- 13 27.) Myers commenced this action by filing a pro se Petition for a Writ of Habeas 14 Corpus. (ECF No. 1.) Following the appointment of counsel, Myers filed a First- 15 Amended Petition. (ECF Nos. 4, 29.) 16 II. DISCUSSION 17 A. Timeliness of the Petition 18 Respondents contend Myers’s original petition and, therefore, his First- 19 Amended Petition, are untimely. (ECF No. 42 at 4–5.) Myers alleges he is entitled 20 to equitable tolling. (ECF No. 48 at 2–10.) For the reasons explained below, the 21 Court concludes Myers is entitled to equitable tolling and denies the motion to 22 dismiss the First-Amended Petition as untimely. 23 1. Statutory Tolling Analysis 24 The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a 25 1-year period of limitations for state prisoners to file a federal habeas petition 26 under 28 U.S.C. § 2254. The 1-year limitation period, i.e., 365 days, begins to 27 run from the latest of four possible triggering dates, with the most common being 1 the conclusion of direct appellate review or the expiration of the time for seeking 2 such review. 28 U.S.C. § 2244(d)(1)(A). 3 For a Nevada prisoner pursuing a direct appeal, a conviction becomes final 4 when the 90-day period for filing a petition for certiorari in the Supreme Court 5 of the United States expires after a Nevada appellate court has entered judgment 6 or the Supreme Court of Nevada has denied discretionary review. See Harris v. 7 Carter, 515 F.3d 1051, 1053 n.1 (9th Cir. 2008); Shannon v. Newland, 410 F.3d 8 1083, 1086 (9th Cir. 2005); Sup. Ct. R. 13(3) (“[t]he time to file a petition for a 9 writ of certiorari runs from the date of entry of the judgment or order sought to 10 be reviewed, and not from the issuance date of the mandate (or its equivalent 11 under local practice).”). On March 19, 2020, however, the Supreme Court of the 12 United States issued an order extending the time to file a certiorari petition from 13 90 to 150 days. See 334 FRD 801. That rule took effect on March 19, 2020. Id. 14 The March 19, 2020, rule stayed in effect until July 19, 2021, when the Supreme 15 Court issued a Miscellaneous Order Rescinding COVID-19 Related Orders. See 16 338 FRD 801. 17 The Nevada Court of Appeals decided Myers’s direct appeal on November 18 25, 2020. (ECF No. 37-34.) Myers’s certiorari petition was therefore due 150 19 days later, on April 24, 2021. He did not file a petition for a writ of certiorari. 20 Thus, his conviction was final and his 365-day AEDPA clock started on April 21 25, 2021. 22 No statutory tolling of the AEDPA-limitation period is allowed for the period 23 between finality of a direct appeal and the filing of a petition for post-conviction 24 relief in state court because no state court proceeding is pending during that 25 time. See Rasberry v. Garcia, 448 F.3d 1150, 1153 n.1 (9th Cir. 2006); Nino v. 26 Galaza, 183 F.3d 1003, 1006–07 (9th Cir. 1999). The federal limitations period 27 is, however, tolled while “a properly filed application for State post-conviction or 1 other collateral review with respect to the pertinent judgment or claim is 2 pending.” 28 U.S.C. § 2244(d)(2). 3 Because the filing of Myers’s state postconviction petition on December 22, 4 2021, tolled the federal limitation period under 28 U.S.C. § 2244(d)(2), his 5 AEDPA clock ran from April 25, 2021, until the day before he filed his state 6 postconviction petition, for a total of 240 days. (ECF No. 38-7.) Accordingly, at 7 the time Myers filed his state postconviction petition, he had 125 days remaining 8 of his limitation period to file a federal petition. Once Myers filed his state 9 postconviction petition, the AEDPA-limitation period remained statutorily tolled 10 until December 5, 2022, when the remittitur issued after the Nevada Court of 11 Appeals affirmed the denial of Myers’s state petition. (ECF No. 38-28.) The 12 AEDPA limitation period began to run again the next day, December 6, 2022, 13 and expired 125 days later, on April 10, 2023. Myers, however, handed his 14 federal habeas petition to a correctional officer for transmission to this Court, 15 commencing this action, on June 20, 2023, which was 70 days after the 16 limitations period expired. (ECF 1-1 at 1.) Myers’s petition is untimely unless he 17 can establish entitlement to equitable tolling. 18 2. Equitable Tolling Analysis 19 Myers contends he is entitled to equitable tolling based on the following 20 circumstances: (1) he is wheelchair bound and relies on it to move within the 21 prison and access legal resources; (2) he suffers from serious medical conditions, 22 including Parkinson’s Disease, glaucoma, asthma, high blood pressure, 23 cardiovascular disease and vision loss; (3) he has received inadequate medical 24 care in prison; (4) he experiences pain, tremors, and fatigue, that substantially 25 impaired his ability to concentrate, write, and perform sustained cognitive tasks; 26 (5) his appellate counsel abandoned him by failing to notify him that his state 27 habeas appeal had been denied or provide him a copy of the remittitur; (6) Myers 1 court mailed him the order and remittitur in January 2021; (7) through no fault 2 of his own, it took from February until July or August 2021, for Myers to receive 3 part of his case files; (8) due to COVID-19 protocols and greater than usual 4 prison lockdowns and staffing shortages, he could not access the prison law 5 library to research his claims or make copies of his records; and (9) after he 6 mailed his state habeas petition to the state district court, it took 32 days for the 7 court to file it. (ECF No. 48 at 3–10.) 8 The Supreme Court has held that the AEDPA statute of limitations “is 9 subject to equitable tolling in appropriate cases.” Holland v. Fla., 560 U.S. 631, 10 645 (2010). Equitable tolling is appropriate when (1) a petitioner has been 11 pursuing his rights diligently, and (2) some extraordinary circumstance stood in 12 his way and prevented timely filing. Id. at 649 (citing Pace v. Diguglielmo, 544 13 U.S. 408, 418 (2005)). To satisfy the first element, a petitioner “must show that 14 he has been reasonably diligent in pursuing his rights not only while an 15 impediment to filing caused by an extraordinary circumstance existed, but before 16 and after as well, up to the time of filing.” Smith v. Davis, 953 F.3d 582, 598–99 17 (9th Cir. 2020) (en banc); See also Pace, 544 U.S. at 419 (holding petitioner failed 18 to act diligently because, without any valid justification, he waited for several 19 years to file his state petition and then sat on them for five months after his state 20 proceedings became final before seeking relief in federal court). 21 The level of diligence required for equitable tolling is “reasonable diligence”; 22 not “maximum feasible diligence.” See Holland, 560 U.S. at 653 (quotation 23 marks and citations omitted). “The purpose of requiring a habeas petitioner to 24 show diligence is to verify that it was the extraordinary circumstance, as opposed 25 to some act of the petitioner's own doing, which caused the failure to timely file.” 26 Doe v. Busby, 661 F.3d 1001, 1012–13 (9th Cir. 2011). To satisfy the second 27 element, a petitioner must demonstrate that the “extraordinary circumstances” 1 were the cause of his untimeliness. See Grant v. Swarthout, 862 F.3d 914, 926 2 (9th Cir. 2017). 3 "In evaluating whether an ‘extraordinary circumstance stood in [a 4 petitioner's] way and prevented timely filing,’ a court is not bound by ‘mechanical 5 rules’ and must decide the issue based on all the circumstances of the case 6 before it.” Smith, 953 F.3d at 600 (citing Holland, 560 U.S. at 649–50) (emphasis 7 added) (internal quotation marks omitted). See also Socha v. Boughton, 763 F.3d 8 674, 686 (7th Cir. 2014) (explaining that an equitable tolling inquiry is not a 9 “search for a single trump card,” but “an evaluation of the entire hand that the 10 petitioner was dealt.”); See, e.g., Perez v. Reubart, 150 F.4th 1164, 1168 (9th Cir. 11 2025) (concluding equitable tolling appropriate where despite diligence, 12 petitioner was prevented from timely filing habeas petition by abandonment by 13 postconviction counsel, lack of access to her case file, and inability to obtain a 14 financial certificate from the prison). 15 To consider Myers’s equitable tolling request, it is important to understand 16 there were unforeseen restrictions placed on courts, government offices, prisons, 17 and individuals (incarcerated or not), due to the ongoing extraordinary 18 circumstance created by the response to the COVID-19 public health emergency 19 declarations. Those restrictions persisted, in various forms and levels, and by all 20 accounts, from about March of 2020 to April of 2023, which overlapped with 21 Myers’s federal limitation period. 22 Against the backdrop of the pandemic, Myers had the extraordinary 23 experience of being a wheelchair bound individual due to his ongoing battle with 24 Parkinson’s Disease since 2013, which affects, among other things, his physical 25 ability to write. (ECF Nos. 49-1 at 3; 51-1 at 27, 45, 102, 104, 109, 114.) While 26 imprisoned during the limitation period, he needed, but was not always provided 27 medications, not only for his Parkinson’s Disease, but for COPD, asthma, sleep 1 apnea, HBP, mitral valve prolapse, glaucoma, gout, and high cholesterol. (ECF 2 Nos. 49-1 at 3; 51-1 at 32, 65, 73, 96, 109, 114.) 3 Myers experienced the extraordinary circumstance of being without his 4 case file for about six to eight months—and at least three months of that was 5 during his AEDPA limitation period (April to July 2021). See, e.g., Espinoza- 6 Matthews v. California, 432 F.3d 1021, 1027–28 (9th Cir. 2005) (reiterating, “it 7 is ‘unrealistic to expect [a habeas petitioner] to prepare and file a meaningful 8 petition on his own within the limitations period’ without access to his legal file 9 . . ..” and holding equitable tolling warranted where petitioner was unable to 10 access his legal file for 11 months and received it only a little over a month before 11 his deadline) (quoting Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003)). 12 Myers’s state direct appeal was decided on November 25, 2020. (ECF No. 13 37-34.) Myers’s appellate counsel, however, retired without informing Myers 14 about the status of his case. (ECF No. 49-1 at 2.) Consequently, Myers learned 15 about the status of his direct appeal in January 2021, when he received a copy 16 of the December 2020 remittitur from the state appellate court. (Id.) 17 Myers contacted the Public Defender’s Office (PDO) and reached someone 18 in January or February of 2021 who informed him that his case had “fallen 19 through the cracks.” (Id.) The PDO told Myers he could not have access to his 20 case file, which was necessary for him to file a state postconviction petition, until 21 he obtained and provided the PDO with a court order withdrawing the PDO as 22 his counsel of record. (Id.) On February 25, 2021, Myers mailed a motion seeking 23 withdrawal of the PDO and appointment of counsel for the state postconviction 24 proceeding. (ECF No. 38-2 at 6.) At that point, Myers had, through counsel’s 25 abandonment, been without his case file for about three months. 26 The state court received Myers’s motion for withdrawal of the PDO on 27 March 2, 2021, but the motion was not filed until 30-days later on April 1, 2021. 1 court to grant the motion withdrawing the PDO and deny the motion for 2 appointment of counsel for the state postconviction proceeding. (ECF No. 38-5.) 3 Thus, Myers lost an additional three months without his case file, including more 4 than a month during his AEDPA-limitation period. 5 Myers submitted the order to the PDO and after calling five or six times 6 about his request for his case file, received part of it in July or August of 2021. 7 (ECF No. 49-1 at 2.) He received only the trial transcripts and a copy of his direct 8 appeal. (Id.) He did not receive state-court motions or trial exhibits, which are 9 essential for a white-collar crime case of theft by what amounts to embezzlement. 10 (Id.) Thus, Myers lost another two or three months without his case file due to 11 external forces beyond his control and that time included two to three months of 12 his AEDPA-limitation period. 13 On August 24, 2021, after having received part of his case file and while 14 preparing his state petition, Myers encountered obstacles preventing access to 15 law library and copying facilities. He submitted an Inmate Request Form 16 requesting access to the law library for habeas. (ECF No. 49-2 at 2.) He explained 17 that it was due “soon”; however, six days later he received a response that, “due 18 to covid protocols the law library is not scheduling research at this time.” (Id.) 19 Myers contends he also lacked access to copying services due to the COVID-19 20 lockdowns while preparing his state petition, between August and November of 21 2021, yet he acted diligently by instead mailing documents to family members 22 to make copies and return the originals to him. (ECF No. 49-1 at 2–3.) 23 Once he prepared his state petition, Myers experienced another 29-day 24 delay during his federal limitation period after he mailed his state postconviction 25 petition for filing. Myers submits evidence that he mailed his pro se state 26 postconviction petition by UPS Priority Mail on November 20, 2021, and he 27 received confirmation that it was received by the state court on November 22, 1 been received until almost a month later on December 21, 2021, and filed it the 2 next day, December 22, 2021. (ECF Nos. 38-7 at 2, 9; 38-24 at 5; 49-3.) 3 Myers’s inability to access law library materials and copying facilities 4 continued to stand in his way after the conclusion of his state court proceedings 5 and in the time leading up to his AEDPA-deadline. The remittitur for the state 6 postconviction appeal from the denial of the state postconviction petition issued 7 on December 5, 2022. (ECF No. 38-28.) On the day the state court remittitur 8 issued, Myers mailed a motion seeking a 30-day extension of time to prepare, 9 copy, and mail a petition for review “due to unforeseeable constraints, 10 limitations, and restrictions according to Northern Nevada Correction Center 11 Current Policies and Procedures and the lack of access to the law library . . .. 12 (ECF Nos. 38-30 at 2; 38-31.) The motion was denied. (ECF No. 38-32.) On 13 January 12, 2023, he moved for reconsideration of the denial of his motion for 14 extension of time, explaining that he requested additional time to submit a 15 petition for review due to “unforeseeable constraints at the Nevada Northern 16 Correctional Center Current Policies and Procedures,” and that his delays were 17 based on “the lack of access to the institution law library,” due to facility “labor 18 issues,” and facility changes to “protocol and procedures” that were compounded 19 by weekday holiday closures. (ECF No. 38-34 at 2–3.) The motion for 20 reconsideration was denied on January 20, 2023. (ECF No. 38-35 at 2.) 21 Additionally, in February of 2023, with less than two months left of his 22 federal limitation period due to expire in April of 2023, Myers experienced a 23 “medical mix-up” with another individual by the same last name, that left him 24 without medication, including his Parkinson’s medication (Carbidopa/Levodopa 25 (carbo/levo)). (ECF No. 51-1 at 73.) Many of his medications, including 26 carbo/levo, were unfilled during April and May of 2023. (Id. at 69.) Lack of 27 medication for his Parkinson’s Disease stood in his way as it affected Myers’s 1 pain, tremors, and limited mobility. (ECF No. 39-1 at 3.) Because these many 2 extraordinary circumstances and obstacles over the course of his federal 3 limitation period, affected his ability to timely prepare and file his federal 4 petition, Myers filed a petition that was 70 days late. 5 Although Myers might have filed a “protective” application and sought stay 6 and abeyance in federal court during the pendency of his state postconviction 7 proceedings; it is likely his application would have been denied as his state court 8 proceeding was pending and Myers had every reason to believe his state 9 postconviction claims were timely, pending, and unexhausted, in the state 10 courts. See, e.g., Pace, 544 U.S. at 416 (indicating a prisoner’s “reasonable 11 confusion about whether a state filing would be timely” will ordinarily constitute 12 good cause for a protective federal petition). Moreover, it was impossible at that 13 time for Myers to foresee that extraordinary circumstances outside his control 14 would stand in the way of his filing a timely federal petition after the state 15 postconviction proceedings concluded. He could not have predicted that, after 16 the state postconviction proceedings concluded, he would continue to lack 17 access to law library and copying services or that he would have to contend 18 without medication due to a medical mix-up over his medications in February of 19 2023, and delayed receipt of medications during April and May of 2023. It is 20 telling that shortly after COVID-19 ceased to be considered a public health 21 emergency in April of 2023, and after receipt of his medications resumed, Myers 22 was able to prepare and submit his federal petition, albeit 70 days late. 23 The Court concludes that, based on the totality of the extraordinary 24 circumstances that Myers faced, and the entire hand that he was dealt, he acted 25 with reasonable diligence throughout the limitation period. Moreover, Myers 26 faced more than one extraordinary circumstance, that despite his reasonable 27 diligence, stood in his way for far longer than 70 days and prevented timely filing 1 entitled to equitable tolling for a sufficient period to cover the 70 days when his 2 petition was untimely. The motion to dismiss the petition as untimely is denied. 3 B. Relation Back of Grounds 1 and 2(c) 4 Respondents contend Grounds 1 and 2(c) must be dismissed as untimely 5 because they do not relate back to the original petition. (ECF No. 42 at 6–7.) 6 Myers contends the claims relate back to the original petition. (ECF No. 48 at 7 11–15.) 8 A new claim in an amended petition that is filed after the expiration of the 9 AEDPA one-year limitation period will be timely only if the new 10 claim relates back to a claim in a timely-filed pleading on the basis that the claim 11 arises out of “the same conduct, transaction, or occurrence” as a claim in the 12 timely pleading. See Fed. Rule Civ. Proc. 15(c)(1)(B); Mayle v. Felix, 545 U.S. 644, 13 650 (2005) (“An amended habeas petition, we hold, does not relate back (and 14 thereby escape AEDPA’s one-year limited) when it asserts a new ground for relief 15 supported by facts that differ in both time and type from those the original 16 pleadings set forth.”) In Mayle, the United States Supreme Court held “[a]s long 17 as the original and amended petitions state claims that are tied to a common 18 core of operative facts, relation back will be in order.” Id. at 664. “Hence, relation 19 back depends on the existence of a common ‘core of operative facts’ uniting the 20 original and newly asserted claims.” Id. at 659. A claim that merely adds “a new 21 legal theory tied to the same operative facts as those initially alleged” will relate 22 back and be timely. See id. at 650, 659 & n.5. 23 1. Ground 1 24 Myers alleges the trial court violated his constitutional right to present a 25 defense at trial by precluding cross-examination of Mrs. Lancaster about her 26 husband’s involvement with a former client. (ECF No. 29 at 11–14.) Respondents 27 1 contend this claim is untimely because it does not relate back to Myers’s original 2 petition. (ECF No. 42 at 6.) 3 The Ninth Circuit has found that a supporting brief attached to a petition 4 may be considered part of the habeas petition under Fed. R. Civ. P. 10(c). See 5 Ross v. Williams, 950 F.3d 1160, 1168–69 (9th Cir. 2020). In Ross, the Ninth 6 Circuit determined a habeas petition may incorporate attached exhibits, even if 7 a petitioner does not reference the attachment in the petition itself. Id. (citing Dye 8 v. Hofbauer, 546 U.S. 1, 4 (2005)). Fed. R. Civ. P. 10(c) states, “[a] copy 9 of a written instrument that is an exhibit to a pleading is a part of the pleading 10 for all purposes.” Furthermore, the Advisory Committee Note to Rule 4 of the 11 Rules Governing Section 2254 Cases recognizes a court's preliminary review 12 of a petition prior to the respondents’ response “may properly encompass any 13 exhibits attached to the petition, including, but not limited to, transcripts, 14 sentencing records, and copies of state court opinions.” 15 Myers attached to his original petition a portion of the Nevada Court of 16 Appeals’ decision affirming the judgment on direct appeal, which this Court 17 liberally construes to include the entirety of the opinion. (ECF No. 1-3 at 21–22.) 18 The Nevada Court of Appeals’s decision considered a claim that the trial court 19 erred, including by violating Myers’s Due Process and Confrontation Clause 20 rights, when it excluded cross-examination of Mrs. Lancaster about her 21 husband’s inheritance from a third party (another client). (ECF Nos. 1-3 at 22; 22 37-34 at 5–6 n.5.) Ground 1 relates back to the original petition. The motion to 23 dismiss Ground 1 as untimely is denied. 24 2. Ground 2(c) 25 In Ground 2 of his First-Amended Petition, Myers alleges trial counsel 26 provided ineffective assistance by failing to (a) move to preclude Ms. Willard from 27 testifying at the preliminary hearing, (b) object to the use of her prior testimony 1 Willard had dementia when she gave that testimony. (ECF No. 29 at 14–16.) 2 Respondents contend Ground 2(c) must be dismissed because it does not relate 3 back to Myers’s initial petition and is unexhausted. (ECF No. 42 at 6–7.) Myers 4 agrees his initial petition did not use the phrase “motion for mistrial,” but 5 contends he alleged operative facts for that theory. (ECF No. 48 at 14–15.) 6 The Court finds Ground 2(c) relates back to the initial petition. Myers 7 alleged “trial counsel failed to present the competency of the alleged victim 8 testimony at preliminary hearing or trial” and counsel failed to challenge “the 9 use of testimony of the alleged victim at trial.” (ECF No. 1-1 at 19.) The Court 10 finds the original and amended petitions state claims that are tied to a common 11 core of operative facts, i.e., counsel’s failures to challenge Ms. Willard’s testimony 12 based on her dementia, and therefore relation back is in order. See Mayle, 545 13 U.S. at 664. The motion to dismiss Ground 2(c) as untimely is denied. 14 C. Exhaustion of Grounds 2(c), 3, and 4 15 Respondent moves to dismiss Grounds 2(c), 3, and 4, as unexhausted. 16 (ECF No. 42 at 7–10.) Myers contends these grounds are exhausted, but if the 17 Court finds they are not exhausted, then they are technically exhausted by 18 procedural default and he can overcome the procedural default of the claims 19 under Martinez v. Ryan, 566 U.S. 1 (2012). (ECF No. 48 at 15–23.) 20 A state prisoner first must exhaust state court remedies for a habeas claim 21 before presenting the claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). 22 This exhaustion requirement ensures the state courts, as a matter of comity, 23 have the first opportunity to address and correct alleged violations of federal 24 constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722, 730–31 25 (1991). “A petitioner has exhausted his federal claims when he has fully 26 and fairly presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 27 1129 (9th Cir. 2014) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999)). 1 one complete round of either direct appeal or collateral proceedings to the 2 highest state court level of review available. O'Sullivan, 526 U.S. at 844– 3 45; Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc). 4 To properly exhaust a claim, the claim as asserted in state court “must 5 include reference to a specific federal constitutional guarantee, as well as a 6 statement of the facts that entitle the petitioner to relief.” Woods, 764 F.3d at 7 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996) and Davis v. 8 Silva, 511 F.3d 1005, 1009 (9th Cir. 2008)). “A claim has not 9 been fairly presented in state court if new factual allegations either 10 ‘fundamentally alter the legal claim already considered by the state courts,’ . . . 11 or ‘place the case in a significantly different and stronger evidentiary posture 12 than it was when the state courts considered it.’ ” Atkins v. Bean, 122 F.4th 760, 13 771 (9th Cir. 2024) (quoting Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 14 2014) (internal citation omitted)). 15 1. Ground 2(c) 16 Ground 2(c) alleges counsel was ineffective for failing to move for a mistrial, 17 based on the State’s disclosure that Ms. Willard had dementia when she gave 18 testimony that was read to the jury. (ECF No. 29 at 14–16.) Respondents contend 19 the claim was not fairly presented during the state postconviction proceedings. 20 (ECF No. 42 at 9.) Myers contends the claim does not fundamentally alter the 21 claim already presented to the state courts, or alternatively, he can overcome 22 any procedural default of the claim under Martinez. (ECF No. 48 at 19–20.) 23 The Court finds Ground 2(c) is exhausted. The state appellate court 24 considered whether “trial counsel was ineffective for failing to challenge the 25 victim’s preliminary hearing testimony on the ground that she was incompetent 26 to testify because she was older and had difficulty remembering things.” (ECF 27 No. 38-27 at 4.) The factual allegations in Ground 2(c) neither fundamentally 1 a significantly different and stronger evidentiary posture than it was when the 2 state courts considered it. See Dickens, 740 F.3d at 1318. The motion to dismiss 3 Ground 2(c) as unexhausted is denied. 4 2. Ground 3 5 Ground 3 alleges trial counsel provided ineffective assistance by failing to 6 (a) adequately challenge Mrs. Lancaster’s expert testimony and (b) present a 7 forensic accounting expert to rebut her conclusions at trial. (ECF No. 29 at 16– 8 18.) Respondents move to dismiss Ground 3 as unexhausted arguing Myers 9 fairly presented a claim that trial counsel should have conducted a forensic 10 audit, but did not claim counsel should have presented an expert forensic 11 accountant to rebut Lancaster’s testimony. (ECF No. 42 at 10.) Myers argues this 12 claim was exhausted on post-conviction appeal, or alternatively he can overcome 13 the procedural default of this claim under Martinez. (ECF No. 48 at 22–23). 14 In Myers informal state appellate brief, he alleged that due to, among other 15 things, the failure of his counsel, he was not afforded a fair trial because he was 16 not afforded an unbiased forensic accounting. (ECF No. 38-24 at 6, 8.) He argued 17 that an audit would have established Mrs. Lancaster’s accounting omitted 18 critical information, including that there was no availability of funds to steal. 19 (Id.) Thus, Myers fairly presented a claim to the state courts that trial counsel 20 was ineffective for failing to obtain an audit to challenge Lancaster’s testimony. 21 The motion to dismiss Ground 3 as unexhausted is denied. 22 3. Ground 4 23 In Ground 4, Myers alleges trial counsel provided ineffective assistance by 24 failing to (a) obtain Ms. Willard’s Charles Schwab financial account records; and 25 (b) call Ms. Willard’s financial advisor, Mike Pequeen, to testify at trial. (ECF No. 26 29 at 18–19). Respondents move to dismiss Ground 4 as unexhausted claiming 27 Myers raises them for the first time in his federal petition. (ECF No. 42 at 10.) 1 argued trial counsel was ineffective for failing to call Pequeen to testify and obtain 2 her Charles Schwab financial records to show that Ms. Willard personally 3 authorized the transactions between her checking and investment accounts, was 4 in control of the transactions, and that Myers did not steal from her. (ECF No. 5 48 at 22 (citing ECF Nos. 38-24 at 6–8.) 6 The Nevada Court of Appeals considered whether trial counsel was 7 ineffective for failing to obtain documents from the victim’s financial advisor, M. 8 Pequeen, or to call him as a witness for trial. (ECF No. 38-27 at 3.) Thus, Ground 9 4 was exhausted. See Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011) 10 (“Regardless of whether or how a petitioner has presented a claim, however, 11 that claim has been exhausted if the state courts have in fact ruled on its 12 merits.”) (citing, inter alia, Sandgathe v. Maass, 314 F.3d 371, 377 (9th Cir.2002) 13 (“Where a court has in fact ruled on a claim, there is no possibility of friction 14 between the state and federal court systems caused by the unseemliness of a 15 federal district court's overturning a state court conviction without the state 16 court's having had an opportunity to correct the constitutional violation in the 17 first instance.” (internal quotation marks, alterations, and citation omitted)). The 18 motion to dismiss Ground 4 as unexhausted is denied. 19 20 21 22 23 24 25 26 27 1 || INI. CONCLUSION 2 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 42) 3 || is denied. 4 It is further ordered that Respondents file their answer to the remaining 5 || grounds in the First-Amended Petition within 60 days of the date of this Order. 6 || Petitioner will then have 45 days to file his reply. 7 8 DATED THIS 31st day of March 2026. 9 10 Aras jlosed Wn 11 ANNERTRAUM 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28