McCallister v. Williams

• Court: District Court, D. Nevada
• Decided: February 11, 2022
• Docket: 2:18-cv-01140
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 DONALD MCCALLISTER, Case No. 2:18-cv-01140-JCM-EJY

10 Petitioner, ORDER

11 v. 12 BRIAN E. WILLIAMS, et al., 13 Respondents. 14 15 Donald McCallister’s 28 U.S.C. § 2254 second-amended habeas corpus petition 16 is before the court on respondents’ motion to dismiss several grounds as unexhausted 17 and/or non-cognizable (ECF No. 45). McCallister opposed (ECF No. 48), and 18 respondents replied (ECF No. 50). As discussed below, the motion is granted in part. 19 I. Procedural History and Background 20 A jury convicted McCallister of six counts of sexual assault of a minor under 14 21 years of age and thirteen counts of lewdness with a child under the age of 14 (exhibit 22 4).1 The state district court sentenced him to terms that amounted to life in prison with 23 the possibility of parole after 45 years. Id. Judgment of conviction was entered on 24 January 3, 2012. Id. 25 26

27 1 Exhibits 1-30 are exhibits to petitioner’s second-amended petition, ECF No. 27, and are found at ECF Nos. 2830. Exhibits 31-182 are exhibits to respondents’ first motion to dismiss, ECF No. 33, and are found 1 The Nevada Supreme Court affirmed McCallister’s convictions in January 2014. 2 Exh. 8. In February 2017, the Nevada Supreme Court affirmed in part and reversed and 3 remanded in part the denial of his state postconviction habeas corpus petition. Exh. 15. 4 The court held that the statute of limitations had expired for the lewdness charges. The 5 court remanded for an evidentiary hearing on McCallister’s claim that trial counsel was 6 ineffective for failing to raise a statute of limitations defense. 7 At an April 2017 hearing, the State moved in district court to dismiss the lewdness 8 counts because it did not change McCallister’s aggregate sentence. Exh. 153. Defense 9 counsel objected on the basis that the Nevada Supreme Court had remanded for an 10 evidentiary hearing. The district court granted the motion to dismiss and told defense 11 counsel he could file an additional brief regarding the issues that the defense believed 12 remained to be resolved. 13 On May 2, 2017, McCallister filed a motion to dismiss or in the alternative for a new 14 trial and/or evidentiary hearing in state district court. Exh. 17. The state district court 15 denied the motion. Exh. 161. The Nevada Supreme Court dismissed the appeal in part 16 for lack of jurisdiction because no statute or court rule provides for an appeal of an order 17 denying a motion to dismiss or a motion for an evidentiary hearing. Case No. 73261. 18 The state supreme court also directed that an amended judgment of conviction be 19 entered reflecting the dismissal of the lewdness counts. The amended judgment of 20 conviction was entered on July 25, 2018. Exh. 23. 21 Next, McCallister dispatched his original federal habeas petition for filing on or about 22 June 21, 2018 (ECF No. 7). In September 2018, he filed an appeal of his amended 23 judgment of conviction in state court. Case No. 76869. This court granted his motion for 24 appointment of counsel (see ECF No. 6). McCallister filed a counseled, amended 25 federal petition (ECF No. 17). He then filed an unopposed motion to stay in December 26 2018 “until the resolution of his state appeal of his first postconviction petition in the 27 Nevada Supreme Court” (ECF No. 18). In March 2019, the Nevada Supreme Court 1 conviction. Case No. 76869. He moved to reopen his federal case, and he filed a 2 second-amended federal petition in July 2019 (ECF No. 27). That same day, he filed 3 another state postconviction petition. Exh. 180. 4 Respondents filed a motion to dismiss the second-amended petition (ECF No. 33). 5 McCallister then filed a second unopposed motion to stay; the court granted the motion 6 to stay and dismissed the motion to dismiss without prejudice (ECF Nos. 39, 40, 41). 7 The Nevada Supreme Court affirmed the denial of the second state postconviction 8 petition as untimely and successive in December 2020. Exh. 212. 9 McCallister moved to reopen the case in February 2021 and respondents have now 10 filed a second motion to dismiss several grounds in the second-amended petition (ECF 11 No. 45). 12 II. Legal Standard & Analysis 13 a. Exhaustion 14 A federal court will not grant a state prisoner’s petition for habeas relief until the 15 prisoner has exhausted his available state remedies for all claims raised. Rose v. 16 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 17 courts a fair opportunity to act on each of his claims before he presents those claims in 18 a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also 19 Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 20 petitioner has given the highest available state court the opportunity to consider the 21 claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 22 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 23 1981). 24 A habeas petitioner must “present the state courts with the same claim he urges 25 upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal 26 constitutional implications of a claim, not just issues of state law, must have been raised 27 in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 1 must be “alerted to the fact that the prisoner [is] asserting claims under the United 2 States Constitution” and given the opportunity to correct alleged violations of the 3 prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. 4 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) 5 “provides a simple and clear instruction to potential litigants: before you bring any claims 6 to federal court, be sure that you first have taken each one to state court.” Jiminez v. 7 Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520 8 (1982)). “[G]eneral appeals to broad constitutional principles, such as due process, 9 equal protection, and the right to a fair trial, are insufficient to establish exhaustion.” 10 Hiivala, 195 F.3d at 1106. However, citation to state case law that applies federal 11 constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 12 2003) (en banc). 13 A claim is not exhausted unless the petitioner has presented to the state court the 14 same operative facts and legal theory upon which his federal habeas claim is based. 15 Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The 16 exhaustion requirement is not met when the petitioner presents to the federal court facts 17 or evidence which place the claim in a significantly different posture than it was in the 18 state courts, or where different facts are presented at the federal level to support the 19 same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge 20 v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 21 458 (D. Nev. 1984). 22 b. Cognizability (state law claims) 23 A state prisoner is entitled to federal habeas relief only if he is being held in custody 24 in violation of the constitution, laws or treaties of the United States. 28 U.S.C. § 25 2254(a). Alleged errors in the interpretation or application of state law do not warrant 26 habeas relief. Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir. 2004); see also 27 Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (“noting that [the federal court] ha[s] 1 c. Procedural Default 2 28 U.S.C. § 2254(d) provides that this court may grant habeas relief if the 3 relevant state court decision was either: (1) contrary to clearly established federal law, 4 as determined by the Supreme Court; or (2) involved an unreasonable application of 5 clearly established federal law as determined by the Supreme Court. 6 “Procedural default” refers to the situation where a petitioner in fact presented a 7 claim to the state courts, but the state courts disposed of the claim on procedural 8 grounds, instead of on the merits. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 9 A federal court will not review a claim for habeas corpus relief if the decision of the state 10 court regarding that claim rested on a state law ground that is independent of the 11 federal question and adequate to support the judgment. Id. 12 The Coleman Court explained the effect of a procedural default:

13 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural 14 rule, federal habeas review of the claims is barred unless the prisoner can 15 demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the 16 claims will result in a fundamental miscarriage of justice. 17 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The 18 procedural default doctrine ensures that the state’s interest in correcting its own 19 mistakes is respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 20 1039, 1046 (9th Cir. 2003). 21 To demonstrate cause for a procedural default, the petitioner must be able to 22 “show that some objective factor external to the defense impeded” his efforts to comply 23 with the state procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to 24 exist, the external impediment must have prevented the petitioner from raising the 25 claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 26 Ground 3 27 McCallister contends that his appellate counsel was ineffective for failing to raise 1 his appeal of the denial of his first state postconviction petition, McCallister makes a 2 passing reference in an introductory paragraph, that trial and appellate counsel were 3 both ineffective for failing to investigate and challenge the statute of limitations. Exh. 13, 4 p. 32. But the actual claim is solely one of ineffective assistance of his trial counsel, 5 Paul Wommer. Id. at 34-36. Exhaustion requires a petitioner to raise the operative facts 6 and legal theory of his claim in the highest state court. Castillo v. McFadden, 399 F.3d 7 993, 1000 (9th Cir. 2005); see also exh. 15, p. 3, Nevada Supreme Court’s order 8 affirming the denial of the petition (“McCallister first argues that trial counsel should 9 have asserted a statute of limitations defense”).2 The court agrees with respondents 10 that ground 3 is unexhausted. 11 Ground 4 12 McCallister urges that the trial court admitted prejudicial hearsay in violation of 13 his Sixth and Fourteenth Amendment due process and fair trial rights (ECF No. 27, pp. 14 66-75). Respondents argue that McCallister only presented this claim as a state law 15 claim in the state courts (ECF No. 45, pp. 9-10). 16 McCallister titled this claim before the Nevada Supreme Court as an alleged 17 violation of his Sixth and Fourteenth Amendment rights to a fair trial. Exh. 6, p. 25. He 18 stated, without citation, that “[a]dmission of hearsay can result in the denial of a fair 19 trial.” Id. But his claim that it was error to admit the challenged hearsay statements 20 relied entirely on state law. “Mere general appeals to broad constitutional principles, 21 such as due process, equal protection, and the right to a fair trial, do not establish 22 exhaustion.” Hiivala, 195 F.3d at 1106. As respondents point out, the Ninth Circuit has 23 specifically rejected the notion that making a cursory reference to vague concepts like 24 due process or the right to a fair trial, then discussing state law in detail, is sufficient to 25 exhaust a claim. See Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005) 26 (“Petitioner’s briefing to the state court mentioned the ‘federal Constitution’ twice, and 27 1 ‘due process’ once, but discussed an applicable provision of the state constitution 2 throughout the remainder of the argument. Petitioner’s mere mention of the federal 3 Constitution as a whole, without specifying an applicable provision, or an underlying 4 federal legal theory, does not suffice to exhaust the federal claim.”) The claim is 5 unexhausted. Moreover, McCallister claims error in the application or interpretation of 6 state law. See Hubbart, 379 F.3d at 779-80. This is a state-law claim, and it is not 7 cognizable in federal habeas corpus. Ground 4 is dismissed. 8 Ground 5 9 McCallister asserts that the cumulative effect of errors at trial violated his Fifth, 10 Sixth, and Fourteenth Amendment rights (ECF No. 27, pp. 75-76). 11 Respondents argue that ground 5 is unexhausted to the extent that it 12 incorporates any unexhausted claim (ECF No. 45, p. 10). Ground 5 is exhausted to the 13 extent that it incorporates underlying exhausted claims only. 14 Ground 1 15 McCallister argues that the prosecution committed misconduct by charging him 16 with 13 counts of lewdness it knew were barred by the statute of limitations (Ground 17 1.1); offering inadmissible testimony to vouch for and bolster the victim’s credibility 18 (Ground 1.2); and attempting to portray him as a repeat offender or child abuser 19 (Ground 1.3) (ECF No. 27, pp. 26-36). McCallister presented these claims in state court 20 during his most recent postconviction proceeding and the Nevada Supreme Court 21 rejected them as procedurally barred pursuant to NRS 348.726 and NRS 34.810. Exh. 22 212, pp. 1-2, 5-6. 23 McCallister contends that he attempted to raise these claims to the highest state 24 court but was repeatedly thwarted. But McCallister raised no claims of prosecutorial 25 misconduct in his direct appeal. As to ground 1.1, he did not raise it on direct appeal. 26 See exh. 6. As to ground 1.2, he raised the claim that the district court erred in admitting 27 the complained-of testimony (see federal ground 4, above), but he did not present a 1 As stated, McCallister presented these claims in state court during his most recent 2 postconviction proceeding, and the Nevada Supreme Court rejected them as 3 procedurally barred pursuant to NRS 34.726 and NRS 34.810. Exh. 212, pp. 1-2, 5-6. 4 Petitioner bears the burden of proving good cause for his failure to present the claim 5 and actual prejudice. NRS 34.810(3). The Ninth Circuit Court of Appeals has held that, 6 at least in non-capital cases, application of the procedural bars at issue in this case – 7 NRS 34.726 and NRS 34.810 – are independent and adequate state grounds. Vang v. 8 Nevada, 329 F.3d 1069, 1073-75 (9th Cir. 2003); see also Bargas v. Burns, 179 F.3d 9 1207, 1210-12 (9th Cir. 1999). Therefore, the Nevada Supreme Court’s determination 10 that federal ground 1 was procedurally barred under NRS 34.726 and 34.810 were 11 independent and adequate grounds to affirm the denial of the claims in the state 12 petition. 13 McCallister argues that he can demonstrate cause because he could not have 14 raised these claims until the Nevada Supreme Court ruled in his favor on appeal of the 15 denial of his state postconviction petition, holding that the statute of limitations for the 16 lewdness charges had expired (ECF No. 48, pp. 8-16). This belies common sense. 17 McCallister certainly could have (and should have) raised the statute of limitations 18 argument on direct appeal. The entirety of ground 1 is procedurally defaulted. 19 Ground 2 20 McCallister sets forth several claims that his counsel was ineffective in violation 21 of his Sixth and Fourteenth Amendment rights (ECF No. 27, pp. 36-65) In ground 2.2.2 22 he alleges that his counsel failed to investigate McCallister’s former colleague Louis 23 Johnson. Respondents argue that this claim is unexhausted and procedurally barred 24 (ECF No. 45, p. 8). 25 McCallister returned to state court and raised ground 2.2.2 as part of his successive 26 postconviction petition. The Nevada Supreme Court held that the claim was 27 procedurally defaulted as untimely and successive under NRS 34.726(1) and 34.810(3). 1 review but argues that he can demonstrate cause and prejudice to excuse that default 2 based on ineffective assistance of state postconviction counsel. 3 The Court in Coleman held that ineffective assistance of counsel in postconviction 4 proceedings does not establish cause for the procedural default of a claim. 501 U.S. at 5 750. However, in Martinez v. Ryan, the Court subsequently held that the failure of a 6 court to appoint counsel, or the ineffective assistance of counsel in a state 7 postconviction proceeding, may establish cause to overcome a procedural default in 8 specific, narrowly-defined circumstances. 566 U.S. 1 (2012). The Court explained that 9 Martinez established a “narrow exception” to the Coleman rule:

10 Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural 11 default will not bar a federal habeas court from hearing a substantial claim 12 of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. 13 566 U.S. at 17. 14 In Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014), the Ninth Circuit provided 15 guidelines for applying Martinez, summarizing the analysis as follows: 16 To demonstrate cause and prejudice sufficient to excuse the 17 procedural default, therefore, Martinez . . . require[s] that Clabourne make 18 two showings. First, to establish “cause,” he must establish that his counsel in the state postconviction proceeding was ineffective under the 19 standards of Strickland [v. Washington, 466 U.S. 668 (1984)]. Strickland, in turn, requires him to establish that both (a) post-conviction counsel's 20 performance was deficient, and (b) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction 21 proceedings would have been different. Second, to establish “prejudice,” 22 he must establish that his “underlying ineffective-assistance-of-trial- counsel claim is a substantial one, which is to say that the prisoner must 23 demonstrate that the claim has some merit.” 24 Clabourne, 745 F.3d at 377 (citations omitted). 25 Here, McCallister argues that he can establish cause and prejudice under Martinez 26 to excuse the default of this claim and to demonstrate that this court should review the 27 claim on the merits (ECF No. 48, pp. 17-19). Respondents acknowledge that the 1 intertwined, and they ask the court to defer a ruling on whether the procedural default is 2 excused until the merits disposition. The court agrees and declines to dismiss ground 3 2.2.2 at this time. A decision on whether ground 2.2.2 is procedurally barred from 4 federal review is deferred. III. Petitioner’s Options Regarding Unexhausted Claim 5 A federal court may not entertain a habeas petition unless the petitioner has 6 7 exhausted available and adequate state court remedies with respect to all claims in the 8 petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both 9 exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the 10 court finds that ground 3 is unexhausted, ground 1 is procedurally defaulted, a decision 11 on whether ground 2.2.2 is procedurally defaulted is deferred, and ground 4 is 12 dismissed. Because the court finds that the petition contains an unexhausted claim, 13 14 petitioner has these options: 15 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claim in his federal habeas petition, and proceed only on 16 the exhausted claims;

17 2. He may return to state court to exhaust his unexhausted 18 claim in which case his federal habeas petition will be denied without prejudice; or 19 3. He may file a motion asking this court to stay and abey his 20 exhausted federal habeas claims while he returns to state court to exhaust his unexhausted claim. 21 With respect to the third option, a district court has discretion to stay a petition 22 that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005). 23 The Rhines Court stated: 24

25 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to 26 present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for 27 the petitioner’s failure to exhaust his claims first in state court. Moreover, claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application 1 for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts 2 of the State”). 3 Rhines, 544 U.S. at 277. 4 If petitioner wishes to ask for a stay, he must file a motion for stay and abeyance 5 in which he demonstrates good cause for his failure to exhaust his unexhausted claim in 6 state court and presents argument regarding the question of whether his unexhausted 7 claim is plainly meritless. Respondents would then be granted an opportunity to 8 respond, and petitioner to reply. Or petitioner may file a declaration voluntarily 9 abandoning his unexhausted claim, as described above. 10 Petitioner’s failure to choose any of the three options listed above, or seek other 11 appropriate relief from this court, will result in his federal habeas petition being 12 dismissed. Petitioner is advised to familiarize himself with the limitations periods for 13 filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations 14 periods may have a direct and substantial effect on whatever choice he makes 15 regarding his petition. 16 IV. Conclusion 17 IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 45) 18 is granted in part as follows: 19 Ground 1 is procedurally barred from federal habeas review; 20 A decision on whether ground 2.2.2 is procedurally defaulted is deferred; 21 Ground 3 is UNEXHAUSTED; 22 Ground 4 is DISMISSED as noncognizable in federal habeas corpus. 23 IT IS FURTHER ordered that petitioner has 30 days to either: (1) inform this 24 court in a sworn declaration that he wishes to formally and forever abandon the 25 unexhausted ground for relief in his federal habeas petition and proceed on the 26 exhausted grounds; OR (2) inform this court in a sworn declaration that he wishes to 27 dismiss this petition without prejudice in order to return to state court to exhaust his 1 || hold his exhausted claims in abeyance while he returns to state court to exhaust his 2 || unexhausted claim. If petitioner chooses to file a motion for a stay and abeyance, or 3 || seek other appropriate relief, respondents may respond to such motion as provided in 4 || Local Rule 7-2. 5 IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted 6 || ground, respondents will have 30 days from the date petitioner serves his declaration of 7 || abandonment in which to file an answer to petitioner’s remaining grounds for relief. The 8 || answer must contain all substantive and procedural arguments as to all surviving 9 || grounds of the petition and comply with Rule 5 of the Rules Governing Proceedings in 10 || the United States District Courts under 28 U.S.C. §2254. 11 IT IS FURTHER ORDERED that petitioner will have 30 days following service of 12 || respondents’ answer in which to file a reply. 13 IT IS FURTHER ORDERED that if petitioner fails to respond to this order within 14 || the time permitted, this case may be dismissed. 15 IT IS FURTHER ORDERED that respondents’ motion to extend time to file their 16 || response to the second-amended petition (ECF No. 44) and motion to extend time to 17 || file their reply in support of their motion to dismiss (ECF No. 49) are both GRANTED 18 || nunc pro tunc. 19 IT IS FURTHER ORDERED that petitioner's motion to extend time to file his 20 || Opposition to the motion to dismiss (ECF No. 47) is GRANTED nunc pro tunc. a1 DATED: February 11, 2022. 22

23 xe Ltind ©. allan JAMES &. MAHAN 24 UNITED STATES DISTRICT JUDGE 25 26 27 28