McClain v. Russell

• Court: District Court, D. Nevada
• Decided: September 30, 2019
• Docket: 3:14-cv-00269
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 6 JAMES DAVID McCLAIN, Case No. 3:14-cv-00269-MMD-CBC

7 Petitioner, ORDER v. 8

9 ROBERT LeGRAND, et al.,

10 Respondents. 11 12 This represented habeas matter by Petitioner James David McClain (“Petitioner or 13 “McClain”) under 28 U.S.C. § 2254 is pending before the Court on, inter alia, McClain’s 14 motion for an evidentiary hearing. (ECF No. 90.) 15 I. BACKGROUND 16 Petitioner James David McClain seeks to set aside his 2012 Nevada state 17 conviction, pursuant to a guilty plea, of two counts of sexual assault of a child under 14 18 years of age. He is sentenced to two consecutive life sentences of life with eligibility for 19 parole after 35 years on each such consecutive sentence. Petitioner moves for an 20 evidentiary hearing so that he may, inter alia, seek to overcome the procedural default of 21 the claims of ineffective assistance of trial counsel in his second amended petition. (See 22 ECF Nos. 69, 84.) 23 II. DISCUSSION 24 With the exception of the rule in Martinez v. Ryan, 566 U.S. 1 (2012), the Nevada 25 state courts recognize substantially the same bases for overcoming state procedural bars 26 as the federal courts recognize to overcome a procedural default. The Court therefore 27 has clearly stated both in this case and multiple prior cases that a claim will be technically 28 exhausted by procedural default in habeas cases arising out of Nevada only if either: (a) 1 the petitioner has no potential grounds to overcome the procedural default, in which case 2 the claim then will be dismissed with prejudice as procedurally defaulted; or (b) the 3 petitioner relies exclusively on grounds to overcome the procedural default that the 4 Nevada state courts do not recognize. (See, e.g., ECF No. 82 at 10–12.) 5 In prior filings directed to the exhaustion issue, McClain relied solely on Martinez 6 as a basis for overcoming a procedural default of his claims. The Court therefore held 7 that his claims were technically exhausted by procedural default, subject to his ability to 8 seek to overcome the procedural default under Martinez. 9 In the reply, however, McClain clearly has asserted an additional basis for 10 overcoming the procedural default, expressly in the alternative to Martinez: In the alternative, McClain requests this Court to find that his abandonment 11 by post-conviction counsel serve as cause for overcoming the default. In 12 Maples [v. Thomas, 565 U.S. 266 (2012)], the Supreme Court held that when an attorney abandons his client, “the principal-agent relationship is 13 severed and the attorney’s acts or omissions ‘cannot fairly be attributed to the client.’” Therefore, the Court held a petitioner “has shown ample 14 cause...to excuse the procedural default into which he was trapped when 15 counsel of record abandoned him without a word of warning.” This is exactly what happened in McClain’s case. McClain never learned of post-conviction 16 counsel’s abandonment—he just learned his counsel never filed anything on his behalf. 17 18 (ECF No. 89 at 24 (citations omitted).) 19 The Nevada state courts recognize the rule in Maples as a potential basis for 20 overcoming a procedural default, including in circumstances where the attorney allegedly 21 took no action on a pending matter. See, e.g., Harris v. State, 407 P.3d 348, 352 (Nev. 22 Ct. App. 2017); Dow v. State, No. 70410-COA, 2019 WL 2454077, at *1 (Nev. Ct. App. 23 June 11, 2019) (unpub.); Guy v. State, 406 P.3d 471 (Table), 2017 WL 5484322, at *2 24 (Nev. Nov. 14, 2017) (unpub.); Guerrero v. State, 399 P.3d 329 (Table), 2017 WL 25 2628213, at *1 (Nev. June 15, 2017) (unpub.). 26 McClain thus is seeking to overcome a procedural default in this Court on a basis 27 that also is recognized by the Nevada state courts. He cannot do so and persuasively 28 maintain at the same time that his claims necessarily would be procedurally barred if he 1 returned to the state courts. His claims therefore are neither technically exhausted nor 2 necessarily procedurally defaulted at this point.1 3 McClain therefore must either show cause why this action should not be dismissed 4 for lack of exhaustion and/or move for a stay. See Mena v. Long, 813 F.3d 907 (9th Cir. 5 2016) (availability of a stay on a wholly unexhausted petition). 6 It is therefore ordered that Petitioner has 30 days within which to show cause why 7 the petition, as amended, should not be dismissed for lack of exhaustion and/or to file a 8 motion for a stay. If Petitioner does neither timely, the matter will be dismissed for lack of 9 exhaustion. And such dismissal will be without prejudice but will not preclude the 10 application of the federal limitation period to a later-filed action. 11 It is further ordered that the parties respectively may file memoranda addressing 12 any show-cause response filed and/or any motion filed per the usual time periods allowed 13 for briefing a motion under the local rules. Petitioner’s motion for an evidentiary hearing 14 (ECF No. 90) will remain under submission in the meantime. 15 /// 16 /// 17 /// 18 /// 19 /// 20 1McClain obliquely referenced Maples in the course of an argument under 21 Martinez in his opposition to Respondents’ motion to dismiss. (See ECF No. 78, at 15 & n.80.) If this had been regarded as presenting an argument also under Maples, the matter 22 would have reached the current point then. As the Court stated previously:

23 . . . . Comity requires that the state courts be given the first opportunity to address a claim on the merits if merits review in the state courts remains a 24 possibility under the petitioner’s procedural-default arguments.

25 . . . McClain is not being told what he can or cannot claim or argue, now or in the future. He simply is encountering the effect of his arguments on the 26 exhaustion issue. A claim is not technically exhausted if the petitioner’s raised or reserved procedural-default arguments potentially could result in 27 the claim being considered on the merits if the claim were fairly presented in state court. 28 1 It is further ordered that Respondents’ motion for enlargement of time (ECF No. 2|| 87) is granted nunc pro tunc in connection with the answer (ECF No. 88) filed on July 23, 3|| 2019. 4 DATED THIS 30" day of September 2019. 5 — 6 AG 7 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28