5 ROBERT McCONNELL, Case No. 3:10-cv-00021-GMN-WGC
6 Petitioner, ORDER 7 v.
8 WILLIAM GITTERE, et al., 9 Respondents. 10 11 12 In this capital habeas corpus action, on April 3, 2020, the petitioner, Robert 13 McConnell, represented by appointed counsel, filed a second amended petition for writ 14 of habeas corpus (ECF No. 95). Respondents then filed a motion to dismiss (ECF No. 15 105) on October 8, 2020. 16 On December 7, 2020, McConnell filed a Motion to Strike, or, in the Alternative, 17 Motion for More Definite Statement (ECF No. 107). In that motion, McConnell argues 18 that the part of the motion to dismiss based on the statute of limitations does not state 19 the asserted defense with sufficient particularity, and, therefore, does not give him fair 20 notice of the scope of the motion such that he may fairly respond to it. Respondents 21 have filed an opposition to McConnell’s motion (ECF No. 111), and McConnell has filed 22 a reply (ECF No. 113). The Court will grant the motion, will deny the motion to dismiss 23 without prejudice, and will require Respondents to file a new motion to dismiss 24 adequately setting forth their statute of limitations defense or abandoning that defense. 25 In their motion to dismiss, in their two-page argument asserting the statute of 26 limitations defense, Respondents concede that McConnell’s original and first amended 27 petitions (ECF Nos. 1, 24) were timely filed, but they argue that McConnell’s second 1 Dismiss (ECF No. 105), pp. 4–5. Respondents’ entire argument based on the statute of 2 limitations is as follows:
3 This action is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA created a one- 4 year statute of limitations, which can be found at 28 U.S.C. § 2244(d) and provides: 5 (1) A 1-year period of limitation shall apply to an application 6 for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall 7 run from the latest of -- . . .
8 (A) the date on which the judgment became final by the conclusion of direct review or the 9 expiration of the time for seeking such review;
10 (B) the date on which the impediment to filing an application created by State action in 11 violation of the Constitution or laws of the United States is removed, if the applicant was 12 prevented from filing by such state action;
13 (C) the date on which the constitutional right asserted was initially recognized by the 14 Supreme Court, if the right has been newly recognized by the Supreme Court and made 15 retroactively applicable to cases on collateral review; or 16 (D) the date on which the factual predicate of 17 the claim or claims presented could have been discovered through the exercise of due 18 diligence.
19 (2) The time during which a properly filed application for state postconviction or other collateral review with respect to 20 the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this 21 subsection.
22 The statute of limitations is typically calculated from the date of finality, but a petitioner may establish he is entitled to delayed accrual under 28 23 U.S.C. 2244(d)(1)(B) through (D) on a claim-by-claim basis. Mardesich v. Cate, 668 F.3d 1164 (9th Cir. 2012). If a petitioner seeks a petition for writ 24 of certiorari in the Supreme Court of the United States, his conviction is considered final when the Supreme Court resolves the petition for writ of 25 certiorari.
26 The Nevada Supreme Court affirmed on direct appeal and because the state filed a petition for rehearing, the time for McConnell to file a 27 petition for writ of certiorari did not expire until 90 days after the Nevada to file a timely petition for writ of certiorari. While he did not petition for 1 certiorari, McConnell filed his first state post-conviction petition on June 10, 2005. Exhibit 5. Thus, as soon as McConnell’s conviction was final 2 under 28 U.S.C. § 2244(d)(1)(A), the tolling provision of 28 U.S.C. § 2244(d)(2) kicked in. 3 The remittitur from McConnell’s first state post-conviction appeal 4 issued on November 3, 2009, Exhibit 17, giving McConnell until November 3, 2010, to file a timely federal petition. McConnell filed his original federal 5 petition on January 13, 2010. ECF No. 1. And he filed his first-amended federal petition on October 6, 2010. ECF No. 24. 6 However, he filed the operative petition in this case—the second- 7 amended petition—well after expiration of the statute of limitations on April 3, 2020. ECF No. 96. As a result, absent McConnell showing that 8 individual claims of the second-amended petition are timely under the delayed accrual provisions of 28 U.S.C. 2244(d)(1)(B) through (D), his 9 second-amended petition is untimely in its entirety. McConnell may, however, be able to avoid dismissal of any untimely claims if he can carry 10 his burden of establishing that he is actually innocent, that he is entitled to equitable tolling, or that his claims relate back to one of his prior timely 11 filed pleadings. McQuiggin v. Perkins, 569 U.S. 383 (2013) (acknowledging that a claim of actual innocence can overcome the 12 AEDPA statute of limitations); Smith v. Davis, 953 F.3d 582, 588–99 (9th Cir. 2020) (en banc) (addressing the standard for establishing equitable 13 tolling); Ross v. Williams, 950 F.3d 1160, 1167, 1172 (9th Cir. 2020) (identifying standard requiring a petitioner to show that “each claim in the 14 amended petition” relates back to a prior timely filed pleading and acknowledging that a court may dismiss a petition as untimely 15 where the pleadings or additional briefing fail to “identify the specific portions of an earlier pleading that contain the relevant factual material to 16 which the new pleading is attempting to relate back”).
17 Id. 18 McConnell’s second amended habeas petition is over 300 pages long, and it 19 includes 18 claims, many with multiple subparts. A brief comparison of McConnell’s 20 second amended petition with his first amended petition reveals that there is substantial 21 overlap between the two. 22 Under the Federal Rules of Civil Procedure, an amended pleading relates back 23 to the date of an earlier pleading when “the amendment asserts a claim … that arose 24 out of the conduct, transaction, or occurrence set out—or attempted to be set out—in 25 the original pleading.” Fed. R. Civ. P. 15(c)(1)(B); see also Mayle v. Felix, 545 U.S. 644, 26 649 (2005). However, a claim in an amended habeas petition does not meet the 27 relation-back standard “when it asserts a new ground for relief supported by facts that 1 The AEDPA statute of limitations applies on a claim-by-claim basis. See 2 Mardesich v. Cate, 668 F.3d 1164, 1170–71 (9th Cir. 2012).
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5 ROBERT McCONNELL, Case No. 3:10-cv-00021-GMN-WGC
6 Petitioner, ORDER 7 v.
8 WILLIAM GITTERE, et al., 9 Respondents. 10 11 12 In this capital habeas corpus action, on April 3, 2020, the petitioner, Robert 13 McConnell, represented by appointed counsel, filed a second amended petition for writ 14 of habeas corpus (ECF No. 95). Respondents then filed a motion to dismiss (ECF No. 15 105) on October 8, 2020. 16 On December 7, 2020, McConnell filed a Motion to Strike, or, in the Alternative, 17 Motion for More Definite Statement (ECF No. 107). In that motion, McConnell argues 18 that the part of the motion to dismiss based on the statute of limitations does not state 19 the asserted defense with sufficient particularity, and, therefore, does not give him fair 20 notice of the scope of the motion such that he may fairly respond to it. Respondents 21 have filed an opposition to McConnell’s motion (ECF No. 111), and McConnell has filed 22 a reply (ECF No. 113). The Court will grant the motion, will deny the motion to dismiss 23 without prejudice, and will require Respondents to file a new motion to dismiss 24 adequately setting forth their statute of limitations defense or abandoning that defense. 25 In their motion to dismiss, in their two-page argument asserting the statute of 26 limitations defense, Respondents concede that McConnell’s original and first amended 27 petitions (ECF Nos. 1, 24) were timely filed, but they argue that McConnell’s second 1 Dismiss (ECF No. 105), pp. 4–5. Respondents’ entire argument based on the statute of 2 limitations is as follows:
3 This action is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA created a one- 4 year statute of limitations, which can be found at 28 U.S.C. § 2244(d) and provides: 5 (1) A 1-year period of limitation shall apply to an application 6 for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall 7 run from the latest of -- . . .
8 (A) the date on which the judgment became final by the conclusion of direct review or the 9 expiration of the time for seeking such review;
10 (B) the date on which the impediment to filing an application created by State action in 11 violation of the Constitution or laws of the United States is removed, if the applicant was 12 prevented from filing by such state action;
13 (C) the date on which the constitutional right asserted was initially recognized by the 14 Supreme Court, if the right has been newly recognized by the Supreme Court and made 15 retroactively applicable to cases on collateral review; or 16 (D) the date on which the factual predicate of 17 the claim or claims presented could have been discovered through the exercise of due 18 diligence.
19 (2) The time during which a properly filed application for state postconviction or other collateral review with respect to 20 the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this 21 subsection.
22 The statute of limitations is typically calculated from the date of finality, but a petitioner may establish he is entitled to delayed accrual under 28 23 U.S.C. 2244(d)(1)(B) through (D) on a claim-by-claim basis. Mardesich v. Cate, 668 F.3d 1164 (9th Cir. 2012). If a petitioner seeks a petition for writ 24 of certiorari in the Supreme Court of the United States, his conviction is considered final when the Supreme Court resolves the petition for writ of 25 certiorari.
26 The Nevada Supreme Court affirmed on direct appeal and because the state filed a petition for rehearing, the time for McConnell to file a 27 petition for writ of certiorari did not expire until 90 days after the Nevada to file a timely petition for writ of certiorari. While he did not petition for 1 certiorari, McConnell filed his first state post-conviction petition on June 10, 2005. Exhibit 5. Thus, as soon as McConnell’s conviction was final 2 under 28 U.S.C. § 2244(d)(1)(A), the tolling provision of 28 U.S.C. § 2244(d)(2) kicked in. 3 The remittitur from McConnell’s first state post-conviction appeal 4 issued on November 3, 2009, Exhibit 17, giving McConnell until November 3, 2010, to file a timely federal petition. McConnell filed his original federal 5 petition on January 13, 2010. ECF No. 1. And he filed his first-amended federal petition on October 6, 2010. ECF No. 24. 6 However, he filed the operative petition in this case—the second- 7 amended petition—well after expiration of the statute of limitations on April 3, 2020. ECF No. 96. As a result, absent McConnell showing that 8 individual claims of the second-amended petition are timely under the delayed accrual provisions of 28 U.S.C. 2244(d)(1)(B) through (D), his 9 second-amended petition is untimely in its entirety. McConnell may, however, be able to avoid dismissal of any untimely claims if he can carry 10 his burden of establishing that he is actually innocent, that he is entitled to equitable tolling, or that his claims relate back to one of his prior timely 11 filed pleadings. McQuiggin v. Perkins, 569 U.S. 383 (2013) (acknowledging that a claim of actual innocence can overcome the 12 AEDPA statute of limitations); Smith v. Davis, 953 F.3d 582, 588–99 (9th Cir. 2020) (en banc) (addressing the standard for establishing equitable 13 tolling); Ross v. Williams, 950 F.3d 1160, 1167, 1172 (9th Cir. 2020) (identifying standard requiring a petitioner to show that “each claim in the 14 amended petition” relates back to a prior timely filed pleading and acknowledging that a court may dismiss a petition as untimely 15 where the pleadings or additional briefing fail to “identify the specific portions of an earlier pleading that contain the relevant factual material to 16 which the new pleading is attempting to relate back”).
17 Id. 18 McConnell’s second amended habeas petition is over 300 pages long, and it 19 includes 18 claims, many with multiple subparts. A brief comparison of McConnell’s 20 second amended petition with his first amended petition reveals that there is substantial 21 overlap between the two. 22 Under the Federal Rules of Civil Procedure, an amended pleading relates back 23 to the date of an earlier pleading when “the amendment asserts a claim … that arose 24 out of the conduct, transaction, or occurrence set out—or attempted to be set out—in 25 the original pleading.” Fed. R. Civ. P. 15(c)(1)(B); see also Mayle v. Felix, 545 U.S. 644, 26 649 (2005). However, a claim in an amended habeas petition does not meet the 27 relation-back standard “when it asserts a new ground for relief supported by facts that 1 The AEDPA statute of limitations applies on a claim-by-claim basis. See 2 Mardesich v. Cate, 668 F.3d 1164, 1170–71 (9th Cir. 2012). With respect to 3 McConnell’s second amended petition, this means that the timeliness of each of 4 McConnell’s claims under the statute of limitations turns on the question whether each 5 claim, independently, relates back to a claim in a timely filed petition. 6 Respondents do not, in their motion to dismiss, specify which of McConnell’s 7 claims or subclaims are allegedly barred by the statute of limitations. The Court does 8 not read Respondents’ motion to dismiss to seriously argue that all of McConnell’s 9 claims are barred by the statute of limitations—it appears from a comparison of the first 10 and second amended petitions that such an argument would be largely frivolous. 11 However, because Respondents do not specify which claims or subclaims are subject 12 to their statute of limitations defense, they have failed to state their position with respect 13 to that defense. Respondents do not give McConnell fair notice of their defense. See 14 Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979), overruled on other 15 grounds by Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc) 16 (“The key to determining the sufficiency of pleading an affirmative defense is whether it 17 gives plaintiff fair notice of the defense.”). 18 Federal Rule of Civil Procedure 8(b)(1)(A) states that “[i]n responding to a 19 pleading, a party must … state in short and plain terms its defenses to each claim 20 asserted against it….” Under the circumstances here—again, Respondents’ statute of 21 limitations defense is subject to a claim-by-claim analysis—Respondents must do more, 22 to properly plead their statute of limitations defense, than provide a formulaic recitation 23 of the law governing the statute of limitations and an allegation that the second 24 amended petition was filed after the expiration of the limitations period. At minimum, 25 Respondents must give McConnell fair notice which of his claims or subclaims are 26 subject to the defense. 27 /// 1 IT IS THEREFORE ORDERED that Petitioner’s Motion to Strike, or, in the 2 Alternative, Motion for More Definite Statement (ECF No. 107) is GRANTED. 3 IT IS FURTHER ORDERED that Respondents’ Motion to Dismiss (ECF No. 105) 4 is DENIED, without prejudice to Respondents filing a new motion to dismiss, adequately 5 setting forth their statute of limitations defense or abandoning that defense. 6 IT IS FURTHER ORDERED that Respondents’ will have 30 days from the date 7 of this order to file their new motion to dismiss. In all other respects, the schedule for 8 further proceedings set forth in the order entered on December 4, 2019 (ECF No. 91) 9 will remain in effect. 10 IT IS FURTHER ORDERED that the Clerk of the Court is directed to update the 11 docket for this case to reflect that Aaron Ford has been substituted for Adam Paul 12 Laxalt as the respondent state attorney general (see Order entered December 4, 2019 13 (ECF No. 91)). 14
15 DATED THIS _2 __ day of _______________M_a_r_c_h___, 2021.
UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27