Mixon v. Williams

Opinion

5 UNITED STATES DISTRICT COURT

6 DISTRICT OF NEVADA

7 * * *

8 ANTONIO LEE MIXON, Case No. 2:17-cv-02292-RFB-NJK

9 Petitioner, v. ORDER 10

11 BRIAN E. WILLIAMS, et al.,

12 Respondents.

13 14 This is a habeas corpus proceeding under 28 U.S.C. § 2254. Respondents have filed a 15 motion to dismiss in response to Petitioner Mixon’s first amended petition for a writ of habeas 16 corpus (ECF No. 44). ECF No. 65. Respondents argue that Ground 5 of the petition is unexhausted 17 and procedurally defaulted. For reasons that follow, the motion is granted. 18 I. PROCEDURAL BACKGROUND 19 Having initially been charged with murder, Mixon entered a negotiated plea of guilty to 20 voluntary manslaughter with the use of a deadly weapon. ECF No. 23-14 at 2-6. In December 21 2012, the state district court sentenced Mixon to consecutive ten-year sentences with parole 22 eligibility on each after four years. ECF No. 23-15 at 3-4. Mixon did not appeal his judgment of 23 conviction. 24 Mixon initiated state post-conviction proceedings in December 2013, ECF No. 23-26, and 25 thereafter filed numerous pleadings in state court, including a counseled supplemental petition, 26 ECF No. 24-13. The state district court held an evidentiary hearing, ECF No. 24-19, and 27 1 subsequently denied relief, ECF No. 24-20 at 1-15. Mixon appealed. ECF No. 24-22. 2 Through counsel, Mixon filed an opening brief, but the Nevada Supreme Court 3 subsequently granted Mixon’s motion to dismiss counsel and proceed pro se. ECF No. 24-33 at 2- 4 3. The court directed Mixon to file his own brief and indicate whether it was intended to 5 supplement or replace the brief filed by counsel. Id. at 2. Mixon filed an informal brief indicating 6 that he wanted his brief to replace, rather than supplement, the counseled brief. ECF No. 24-34 7 at 2. 8 The Nevada Supreme Court then referred the matter to the Nevada Court of Appeals for 9 disposition. ECF No. 24-37. In August 2017, the Nevada Court of Appeals entered an order 10 affirming the district court’s denial of relief. ECF No. 24-41 at 2-6. That same month, Mixon 11 initiated this federal habeas proceeding. ECF No. 1. 12 After Mixon filed an amended petition in January 2019 (ECF No. 44), Respondents filed a 13 motion to dismiss with respect to three grounds for relief – Grounds 3, 4, and 5. ECF No. 46. In 14 ruling upon the motion, this Court dismissed Grounds 3 and 4, and concluded Ground 5 was 15 unexhausted. ECF No. 53. The Court subsequently granted Mixon’s motion for stay and abeyance 16 to allow him to return to state court to exhaust Ground 5. ECF No. 56. This case was re-opened 17 pursuant to Mixon’s motion (ECF No. 57) in September 2021. ECF No. 58. On January 3, 2022, 18 Respondents filed the motion to dismiss now before the Court for decision. ECF NO. 65. 19 II. EXHAUSTION REQUIREMENT 20 A federal court will not grant a state prisoner's petition for habeas relief until the prisoner 21 has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 22 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a “fair opportunity” to act on 23 each of his claims before he presents those claims in a federal habeas petition. O'Sullivan v. 24 Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim 25 remains unexhausted until the petitioner has given the highest available state court the opportunity 26 to consider the claim through direct appeal or state collateral review proceedings. See Casey v. 27 1 Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 2 1981). 3 III. DISCUSSION 4 In Ground 5, Mixon alleges that he is actually innocent of voluntary manslaughter with use 5 of a deadly weapon, the charge for which we was convicted pursuant to a guilty plea. Respondents 6 argue that Mixon failed to exhaust the claim because, although he raised it in his state post- 7 conviction petition in the state district court, he failed to properly appeal the state district court’s 8 denial of the petition. 9 Respondents are correct with respect Mixon’s failure to fairly present Ground 5 to 10 Nevada’s highest court. Mixon’s appeal of the lower court’s denial of his petition was dismissed 11 for lack of jurisdiction by the Nevada Supreme Court because it was untimely. See ECF Nos. 66- 12 11, 66-20. Thus, Ground 5 remains unexhausted. See Casey, 386 F.3d at 916 (noting that to satisfy 13 exhaustion requirement a claim must be “raised at all appellate stages afforded under state law”). 14 And, because Nevada procedural rules would now bar consideration of Ground 5, the claims is 15 technically exhausted but deemed procedurally defaulted. See Cooper v. Neven, 641 F.3d 322, 327 16 (9th Cir. 2011). 17 A federal habeas petitioner can overcome a procedural default by demonstrating actual 18 innocence of the crime underlying his conviction. Schlup v. Delo, 513 U.S. 298, 313-15 (1995); 19 McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Here, Mixon’s actual innocence claim is based 20 on the lack of reliable evidence (primarily ballistics evidence) showing that he was the one who 21 shot the person he was charged with killing. ECF No. 44 at 16-21. He does not, however, point to 22 any new and reliable evidence to establish his innocence. See Schlup, 513 U.S. at 324 (petitioner 23 must support his actual innocence claim with “new reliable evidence—whether it be exculpatory 24 scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not 25 presented at trial”). Moreover, Mixon admitted in open court that he shot his victim. ECF No. 23- 26 20 at 5-6. Accordingly, Mixon has not shown that the actual innocence exception to procedural 27 default applies, nor has he shown that his default should be excused for any other reason. 1 IV. CONCLUSION 2 The Court concludes that Ground 5 shall be dismissed as procedurally defaulted. 3 IT IS THEREFORE ORDERED that Respondents’ motion to dismiss (ECF No. 65) is 4 || GRANTED. Ground 5 of Petitioner’s amended habeas petition (ECF No. 44) is dismissed. 5 IT IS FURTHER ORDERED that Respondents have 60 days from the date of entry of 6 || this order to file an answer to the remaining grounds for relief in the petition —1.e., Grounds 1 and 7 || 2. Petitioner shall have 60 days from the date on which the answer is served on him to file and 8 || serve a reply. 9 IT IS FURTHER ORDERED that Petitioner’s motion for status check (ECF No. 63) is 10 |} DENIED as moot. 11 DATED THIS 9" day of August, 2022. 12 : 4 = 13 RICHARD F. BOULWARE, II 44 UNITED STATES DISTRICT JUDGE

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