Michael Whitfield v. Nethanjah Brutenbach

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 MICHAEL WHITFIELD, Case No. 3:23-cv-00305-ART-CLB

6 Petitioner, ORDER v. 7 NETHANJAH BRUTENBACH, 8 Respondents. 9 10 This habeas matter is brought by Petitioner Michael Whitfield. Respondents 11 filed a Motion to Dismiss (ECF No. 35) Ground 1 of the first amended petition as 12 untimely. Also before the Court is Respondents’ Motion to Seal (ECF No. 32). For 13 the reasons discussed below, the Court denies Respondents’ Motion to Dismiss 14 and grants Respondents’ Motion to Seal. 15 I. Background 16 Whitfield challenges a conviction and sentence imposed by the Second 17 Judicial District Court for Washoe County. The state district court entered a 18 judgment of conviction for one count of battery with the use of a deadly weapon 19 causing substantial bodily harm and three counts of obtaining or possessing a 20 credit or debit card without the cardholder’s consent and sentenced Whitfield to 21 an aggregate term of 7 to 19 years. The Nevada Supreme Court affirmed the 22 conviction on direct appeal. Petitioner filed a state petition for writ of habeas 23 corpus. The state court denied post-conviction relief and the Nevada Court of 24 Appeals affirmed the denial of relief. 25 Whitfield initiated this federal habeas corpus proceeding pro se. (ECF 26 No. 1.) Following appointment of counsel, Whitfield filed a first amended petition 27 alleging two claims for relief. 28 /// 1 II. Discussion 2 A new claim in an amended petition that is filed after the expiration of the 3 Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation 4 period will be timely only if the new claim relates back to a claim in a timely-filed 5 pleading. Fed. R. Civ. P. 15(c). An untimely amendment properly “relates back to 6 the date of the original pleading” as long as it arises out of the same “conduct, 7 transaction, or occurrence.” Id. “Relation back depends on the existence of a 8 common core of operative facts uniting the original and newly asserted claims.” 9 Mayle v. Felix, 545 U.S. 644, 659 (2005). 10 New claims in an amended habeas petition do not arise out of “the same 11 conduct, transaction or occurrence” as prior claims merely because they 12 challenge the same trial, conviction, or sentence. Mayle, 545 U.S. at 661; Hebner 13 v. McGrath, 543 F.3d 1133, 1134 (9th Cir. 2008). Rather, to properly relate back, 14 a new claim must arise from the same collection of facts alleged in the earlier 15 petition. Mayle, 545 U.S. at 661; Schneider v. McDaniel, 674 F.3d 1144, 1151 (9th 16 Cir. 2012) (holding that one shared fact in two divergent legal theories was “not 17 sufficient to conclude that they arise out of a common core of operative facts.”). 18 An amended habeas petition “does not relate back (and thereby escape AEDPA’s 19 one-year time limit) when it asserts a new ground for relief supported by facts 20 that differ in both time and type” from those alleged in the timely petition. Mayle, 21 545 U.S. at 650. The Court is “obligated to ‘liberally construe[ ] documents filed 22 pro se,’” like Whitfield’s original petition. Ross v. Williams, 950 F.3d 1160, 1173 23 n.19 (9th Cir. 2020) (en banc). 24 In Ground 1, Whitfield alleges that the State failed to exercise 25 constitutionally reasonable diligence in procuring, Robert Ash (“Ash”), a witness’s 26 attendance at trial. ECF No. 21 at 17. He alleges that his Confrontation Clause 27 rights were violated because the state district court admitted Ash’s preliminary 28 hearing testimony. Whitfield asserts that Ground 1 references the same facts and 1 legal arguments set forth in Ground 3 of his pro se petition. Respondents argue 2 that Ground 1 does not relate back to Ground 3 asserted in Whitfield’s pro se 3 petition because Ground 3 is an ineffective assistance of counsel claim and 4 Ground 1 is a substantive claim. ECF No. 42 at 3. 5 In Ground 3 of his pro se petition, Whitfield alleges that the state district 6 court asked the State “in confirmation do they intend to present any evidence of 7 the [S]tate’s efforts to bring the victim/witness,” and the State, “simple said no, I 8 think those are irrelevant.” ECF No. 13 at 7. In addition, Ground 3 of Whitfield’s 9 pro se petition pincited to United States v. Matus-Zayas, 655 F.3d 1092, 1100 10 (9th Cir. 2011), which provides that the defendant “contends that his 11 Confrontation Clause rights were violated when the videotaped deposition 12 testimony was admitted at trial despite the fact the government never provided 13 evidence to establish the material witnesses were unavailable.” Relying on Matus- 14 Zayas, Whitfield provided that “the government failed to present any evidence at 15 trial to establish that efforts were made to procure the witness’s presence.” ECF 16 No. 13 at 7. 17 The Court finds that Ground 1 is tied to the same core of operative facts as 18 alleged in Whitfield’s timely-filed pro se petition. The common core of operative 19 facts is the State’s failure to procure the victim witness to testify and the 20 admission of the witness’s preliminary hearing testimony. See, e.g., Nguyen v. 21 Curry, 736 F.3d 1287, 1296–97 (9th Cir. 2013) (ineffective assistance claim based 22 on failure to raise double jeopardy related back to timely-raised substantive 23 double jeopardy claim), abrogation on other grounds recognized by Ross v. 24 Williams, 950 F.3d 1160, 1168 (9th Cir. 2020) (en banc). Accordingly, 25 Respondents’ Motion is denied as to Ground 1. 26 III. Motion to Seal 27 Respondents seek leave to file an exhibit under seal (ECF No. 32): 28 Exhibit 88, Petitioner’s Presentence Investigation Report (“PSI”) (ECF No. 33-1), 1 || dated March 20, 2019. Under Nevada law, the PSI is “confidential and must not 2 || be made a part of any public record.” Nev. Rev. Stat. § 176.156(5). Having 3 || reviewed and considered the matter in accordance with Kamakana v. City and 4 || County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and its progeny, the Court 5 || finds that a compelling need to protect Petitioner’s safety, privacy, and/or 6 || personal identifying information outweighs the public interest in open access to 7 || court records. Accordingly, Respondents’ Motion is granted and Exhibit 88 is 8 || considered properly filed under seal. 9 IV. Conclusion 10 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 35) is 11 || denied. 12 It is further ordered that Respondents’ Motion to Seal (ECF No. 32) is 13 || granted. Exhibit 99 is considered properly filed under seal. 14 It is further ordered that Respondents have 60 days from the date of entry 15 || of this order to file their answer. Whitfield will have 30 days from the date on 16 || which the answer is served to file a reply. 17 18 DATED THIS 26th day January 2026. 19 20 on

29 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28