Newell v. Baca

• Court: District Court, D. Nevada
• Decided: March 16, 2020
• Docket: 3:16-cv-00662
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 PATRICK NEWELL, Case No. 3:16-cv-00662-MMD-WGC

7 Petitioner, ORDER

8 v.

9 ISIDRO BACA, et al.,

10 Respondents.

11 12 Before the Court is Petitioner Patrick Newell’s motion for an evidentiary hearing 13 (“Motion”) (ECF No. 56). He filed this as part of his reply (ECF No. 55) in support of his 14 pro se 28 U.S.C. § 2254 habeas corpus petition (“Petition”) (ECF No. 6).1 As discussed 15 below, the Motion is denied. 16 I. Background & Procedural History 17 On June 19, 2014, a jury convicted Newell of battery with use of a deadly weapon 18 resulting in substantial bodily harm (Count Two), attempted assault with a deadly weapon 19 (Count Three), and performance of an act in reckless disregard of persons or property 20 resulting in substantial bodily harm (Count Four). (ECF No. 21-3 at 2–3.)2 The jury found 21 Newell not guilty of attempted murder with a deadly weapon (Count One). (Id. at 2.) The 22 convictions stemmed from an incident where a large, drunk, belligerent 35-year-old man 23 was harassing 65-year-old Newell for a ride at a gas station. (See e.g., ECF No. 21-1 at 24 10–16.) The situation devolved, and Newell doused the victim with gasoline and lit him on 25 26 1The Court has reviewed Respondents’ response in opposition to the Motion. (ECF 27 No. 58.)

28 2Exhibits referenced in this order are exhibits to Respondents’ motion to dismiss (ECF No. 18) and are found at ECF Nos. 19–23. 2 for Count Two and 24–60 months for Count Three, to run concurrently. (ECF No. 22-5 at 3 20.) Count Four was dismissed as redundant. (Id.) Judgment of conviction was filed on 4 August 29, 2014. (ECF No. 22-6.) 5 In his federal habeas petition, Newell raises one issue––he argues that the Nevada 6 courts’ retroactive application of limitations on the justifiable use of deadly force violated 7 his constitutional due process rights against ex post facto violation. (ECF No. 6, ECF No. 8 32 at 4.) This Court denied Respondents’ motion to dismiss. (ECF No. 32.) Respondents 9 answered the petition. (ECF No. 42.) Newell filed his reply/motion for evidentiary hearing 10 (ECF Nos. 55, 56.) 11 II. Legal Standards 12 An evidentiary hearing is authorized under Rule 8(a) of the Rules Governing 13 Section 2254 Cases for the development of a colorable claim when the state court has not 14 reliably found the relevant facts and the claim, if proved, would entitle the petitioner to 15 relief. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). If the record belies the petitioner’s 16 factual allegations, or precludes habeas relief, an evidentiary hearing is unnecessary. Id. 17 The Ninth Circuit has also found that on issues that can be resolved from the record, an 18 evidentiary hearing is not necessary. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 19 1988).3 20 /// 21 22 3To determine whether to grant an evidentiary hearing, the Court may consider six 23 factors: (1) the merits of the factual dispute were not resolved in the state hearing; (2) 24 the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding process employed by the state court was not adequate to afford a full and 25 fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; and (6) for any 26 reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing. Townsend v. Sain, 372 U.S. 293 (1963), overruled on other grounds by 27 Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), superseded in part by statute, 28 U.S.C. § 28 2254(e)(2); see Earp v. Ornoski, 431 F.3d 1158, 1167 (9ht Cir. 2005). 2 Respondents point out as an initial matter that Newell’s request for an evidentiary 3 hearing as included in his reply is inappropriate. (ECF No. 58 at 3.) A reply is not the 4 proper posture to raise claims for the first time, and the Court may utilize its discretion and 5 decline to consider any such claims. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th 6 Cir. 1994). 7 In any event, Newell’s motion fails. Newell has not demonstrated that a hearing is 8 necessary to determine the merit of his claim that retroactive application of new limitations 9 on the use of deadly force violated ex post facto principles and deprived him of a defense 10 that would otherwise have been available to him when he committed his crime. Newell 11 fails to explain how an evidentiary hearing would further establish any factual basis for his 12 for his claim. He contends that Respondents’ answering brief is “in dispute with [his] factual 13 allegations,” but he fails to recite a single factual difference between the petition and the 14 answer. (ECF No. 56 at 6.) The difference lies in the interpretation of the law as applied 15 to the facts in Newell’s case. No factual dispute exists. The record is sufficient to review 16 the state courts’ interpretation of the law and determine if the interpretation was both 17 “contrary to clearly established law” and “objectively unreasonable.” Williams v. Taylor, 18 529 U.S. 362, 405 (2000); Harrington v. Richter, 562 U.S. 86, 101 (2011). 19 Newell has had a full opportunity to provide all evidence regarding the events which 20 led up to the state courts’ alleged ex post facto application of law. Accordingly, the motion 21 for evidentiary hearing (ECF No. 56) is denied. 22 IV. Conclusion 23 It is therefore ordered that Petitioner’s motion for evidentiary hearing (ECF No. 56) 24 is denied. 25 It is further ordered that Petitioner’s motion to have the matter placed on the 26 calendar (ECF No. 59) and motion to submit case for a decision (ECF No. 60) are both 27 denied. The petition now stands brief and will be adjudicated in the ordinary course. 28 /// 1 It is further ordered that Respondents’ motion to extend time to respond to the 2 || motion for evidentiary hearing (ECF No. 57) is granted nunc pro tunc. 3 DATED THIS 16 day of MARCH 2020.

AN MIRANDA M. DU 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28