Palmer v. Garrett

• Court: District Court, D. Nevada
• Decided: August 25, 2022
• Docket: 3:18-cv-00245
• Status: Unknown

Opinion

2 3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 MARKIECE PALMER, Case No. 3:18-cv-00245-HDM-CLB

6 Petitioner, ORDER 7 v.

8 TIM GARRETT,1 et al., 9 Respondents. 10 11 I. Summary 12 This is a habeas matter under 28 U.S.C. § 2254. Before the 13 Court is respondents’ motion to dismiss the second amended petition 14 (“petition”) as mixed claiming Grounds 5(B)–5(F) and 6–10 were not 15 fairly presented to the state courts, or alternatively to dismiss 16 those grounds as procedurally defaulted. (ECF No. 61.) The motion 17 is granted in part and denied in part. 18 II. Procedural Background 19 A jury convicted Palmer of one count of murder and two counts 20 of child abuse, neglect, or endangerment with substantial bodily 21 harm, for the death of seven-year-old R.J. (ECF No. 20-5.) Palmer 22 was sentenced to life without the possibility of parole. (ECF No. 23 20-7.) Palmer timely appealed and the Nevada Supreme Court affirmed 24 the convictions. (ECF Nos. 24-1; 24-4.) 25 1 According to the state corrections department’s inmate locator page, 26 Palmer is incarcerated at Lovelock Correctional Center. The department’s website reflects that Tim Garrett is the warden for that facility. 27 https://doc.nv.gov/Facilities/LCC Facility/. The Court will therefore direct the clerk to substitute Tim Garrett for respondent William Gittere, under, inter 28 alia 1 Palmer thereafter filed two pro se motions alleging, among 2 other things, that trial counsel failed to suppress Palmer’s 3 statement to police as a violation of Miranda.2 (ECF Nos. 21-4; 4 21-5.) The state district court construed the motions as a 5 postconviction petition for writ of habeas corpus and denied all 6 claims. (ECF No. 38-19.) Palmer appealed and the Nevada Supreme 7 Court affirmed the state district court’s denial of relief for the 8 claims that Palmer had raised in the state district court but 9 declined to consider five additional claims Palmer raised for the 10 first time on appeal. (ECF No. 24-6.) 11 Palmer filed a pro se federal habeas corpus petition and an 12 amended petition. (ECF Nos. 7; 19.) Respondents moved to dismiss 13 the amended petition and Palmer moved to stay this action while he 14 exhausted in the state courts a claim that he newly alleged in the 15 amended petition. (ECF Nos. 30; 45; 47.) The Court granted a stay, 16 granted leave to refile, and denied Respondents’ motion to dismiss 17 without prejudice. (ECF No. 49.) 18 The state district court dismissed Palmer’s second state 19 postconviction petition for writ of habeas corpus as untimely and 20 successive. (ECF No. 46-5.) Palmer appealed and the Nevada Supreme 21 Court affirmed finding the second postconviction petition was 22 procedurally barred as untimely and successive, and constituted an 23 abuse of the writ to the extent that Palmer failed to demonstrate 24 cause and prejudice to overcome the default of his claims. (ECF 25 No. 52-2.) 26 /// 27

28 Miranda v. Arizona 1 The Court granted Palmer’s request to reopen his federal case 2 and Palmer filed a second amended petition. (ECF Nos. 54; 58.) 3 III. Legal Standards 4 Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner must 5 exhaust state court remedies on a claim before presenting that 6 claim to a federal court. The exhaustion requirement ensures the 7 state courts, as a matter of federal-state comity, have the first 8 opportunity to pass upon and correct alleged violations of federal 9 constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722, 10 731 (1991). “A petitioner has exhausted his federal claims when he 11 has fully and fairly presented them to the state courts.” Woods v. 12 Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan 13 v. Boerckel, 526 U.S. 838, 848–49 (1999) (“Section 2254(c) requires 14 only that state prisoners give state courts a fair opportunity to 15 act on their claims.”)). 16 The Supreme Court has recognized that under certain 17 circumstances it may be appropriate for a federal court to 18 anticipate the state-law procedural bar of an unexhausted claim, 19 and to treat such a claim as subject to the procedural default 20 doctrine. A federal court need not dismiss an exhausted claim if 21 it is clear that the state court would find the claim procedurally 22 barred. Coleman, 501 U.S. at 731 (“An unexhausted claim will be 23 procedurally defaulted, if state procedural rules would now bar 24 the petitioner from bringing the claim in state court.”); see also 25 Castille v. Peoples, 489 U.S. 346, 351–52 (1989); Dickens v. Ryan, 26 740 F.3d 1302, 1317 (9th Cir. 2014); Sandgathe v. Maass, 314 F.3d 27 371, 376 (9th Cir. 2002). 28 /// 1 Where a petitioner “has defaulted his federal claims in state 2 court pursuant to an independent and adequate state procedural 3 rule,” federal habeas corpus review “is barred unless the prisoner 4 can demonstrate cause for the default and actual prejudice as a 5 result of the alleged violation of federal law or demonstrate that 6 failure to consider the claims will result in a fundamental 7 miscarriage of justice.” Coleman, 501 U.S. at 750. To demonstrate 8 cause, the petitioner must establish some external and objective 9 factor impeded efforts to comply with the state’s procedural rule. 10 E.g., Maples v. Thomas, 565 U.S. 266, 280, 289 (2012) (finding 11 cause to excuse procedural default due to attorney abandonment but 12 remanding for a determination of prejudice); McCleskey v. Zant, 13 499 U.S. 467, 497 (1991) (holding that for cause to exist, the 14 external impediment must have prevented the petitioner from 15 raising the claim). “[T]o establish prejudice, [a petitioner] must 16 show not merely a substantial federal claim, such that ‘the errors 17 . . . at trial created a possibility of prejudice,’ but rather 18 that the constitutional violation ‘worked to his actual and 19 substantial disadvantage.’” Shinn v. Ramirez, 142 S. Ct. 1718, 20 1732 (2022) (citing Murray v. Carrier, 477 U.S. 478, 494 (1986) 21 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) 22 (emphasis in original). 23 With one exception, Nevada’s cause and prejudice standards 24 are functionally identical to the federal standards for cause and 25 prejudice. Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 26 2004); Mitchell v. State, 122 Nev. 1269, 1273–74, 149 P.3d 33, 35– 27 36 (2006). That exception is for a procedurally defaulted claim of 28 ineffective assistance of trial counsel when the cause for the 1 default is the ineffective assistance or absence of postconviction 2 counsel in the initial postconviction proceedings in accordance 3 with Martinez v. Ryan, 566 U.S. 1 (2012). Brown v. McDaniel, 130 4 Nev. 565, 571–76, 331 P.3d 867, 871–75 (2014). A Nevada federal 5 habeas petitioner who relies on Martinez—and only Martinez—as a 6 basis for overcoming a state procedural bar can successfully argue 7 that the state courts would hold the claim procedurally barred, 8 but that he nonetheless has a potentially viable argument for cause 9 and prejudice under federal law. 10 According to the Supreme Court, the necessary circumstances 11 for establishing “cause” to excuse a procedural default of an 12 ineffective assistance of trial counsel claim are: 13 [W]here (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the 14 “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review 15 proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the 16 “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance 17 of trial counsel [claim] . . . be raised in an initial- review collateral proceeding.” 18 19 Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 20 U.S. at 18–19). To show a claim is “substantial,” a petitioner 21 must demonstrate it has “some merit.” Martinez, 566 U.S. at 14. A 22 claim is “insubstantial” if “it does not have any merit or ... is 23 wholly without factual support.” Id. at 16. 24 IV. Discussion 25 A. Grounds 5(B)–5(F) 26 Grounds 5(B)–5(F) allege ineffective assistance of trial 27 counsel. (ECF No. 58 at 27–36.) Respondents contend these grounds 28 were not fairly presented to the state courts and are procedurally 1 defaulted. (ECF No. 61 at 7–9.) Palmer concedes those grounds were 2 not fairly presented to the state courts but requests the Court 3 find the claims technically exhausted and therefore procedurally 4 defaulted because a state court petition raising the claims at 5 this juncture would be dismissed as procedurally barred. (ECF No. 6 63 at 2–4.) Palmer further requests the Court determine the 7 ineffective assistance of counsel claims alleged in Grounds 5(B)– 8 5(F) are substantial, or alternatively, defer ruling whether 9 Palmer can overcome procedural default under Martinez until 10 consideration of the merits of the petition. (Id. at 4–13.) 11 Respondents concede Palmer may rely on Martinez to overcome the 12 procedural default and requests the Court defer the analysis 13 whether Palmer can overcome the default until review of the merits 14 of the petition. (ECF No. 67 at 3.) 15 In light of the rulings of the state courts in Palmer’s second 16 state habeas action, it is clear that Palmer would face multiple 17 procedural bars if he were to return to state court with his 18 unexhausted claims in Grounds 5(B)–5(F). See, e.g., NRS §§ 34.726; 19 34.810. As discussed, the Court may consider those unexhausted 20 claims technically exhausted, but subject to procedural default. 21 See Dickens, 740 F.3d at 1317; see also supra, pp. 3–5. 22 Because Palmer advances only Martinez as a basis for excusing 23 the anticipatory default of his ineffective assistance of trial 24 counsel claims in Grounds 5(B)–5(F), the Court reads Palmer’s 25 opposition as a concession that the only basis for cause as to any 26 of those claims is Martinez. (ECF No. 63 at 4–13.) On that basis, 27 the Court grants the request to consider Grounds 5(B)–5(F) 28 technically exhausted but procedurally defaulted. 1 Nevada law requires prisoners to raise ineffective assistance 2 of counsel claims for the first time in a state petition seeking 3 postconviction review, which is the initial collateral review 4 proceeding for purposes of applying the Martinez rule. See Rodney 5 v. Filson, 916 F.3d 1254, 1259–60 (9th Cir. 2019). And it appears 6 Palmer was unrepresented for his initial review collateral review 7 proceeding. (ECF Nos. 21-4; 21-5; 22-1.) Thus, it appears Palmer 8 can meet three of the four Martinez requirements for cause to 9 overcome his procedural default. However, the Court determines 10 that the remaining issues concerning the procedural defaults of 11 Grounds 5(B) –5(F) are intertwined with the merits of those claims, 12 such that they will be better addressed in conjunction with the 13 merits of Palmer’s petition, after Respondents file an answer and 14 Palmer files a reply. 15 The Court will deny the motion to dismiss as to Grounds 5(B)– 16 5(F) without prejudice to Respondents asserting the procedural 17 default defense to the claims in their answer. 18 B. Ground 6 19 Respondents contend the allegations of ineffective assistance 20 of appellate counsel in Ground 6 were not fairly presented to the 21 state courts and are procedurally defaulted. (ECF No. 61 at 7–9.) 22 Palmer admits Ground 6 is procedurally defaulted and he cannot 23 overcome the default. (ECF No. 63 at 13–14.) Respondents note that 24 Palmer does not identify an alternative basis to overcome the 25 default. (ECF No. 67 at 3.) 26 Palmer does not make any showing of cause and prejudice 27 relative to the procedural default of this claim, or any other 28 showing that excuses the procedural default. And, the Supreme Court 1 has emphasized that Martinez’s equitable exception is limited to 2 claims of ineffective assistance of trial counsel and expressly 3 declined to expand the narrow exception to claims of ineffective 4 assistance of appellate counsel. Davila v. Davis, 137 S. Ct. 2058, 5 2065–66 (2017). 6 The Court will thus grant the motion to dismiss Ground 6 as 7 it is procedurally defaulted. 8 C. Ground 7 9 Ground 7 alleges a substantive claim that Palmer’s statements 10 were obtained in violation of Miranda. (ECF No. 58 at 39.) 11 Respondents contend Ground 7 was not fairly presented to the state 12 courts and is procedurally defaulted. (ECF No. 61 at 7–9.) Palmer 13 concedes Ground 7 was not fairly presented to the state courts but 14 contends his fully exhausted claim in Ground 5(A) (that trial 15 counsel was ineffective in failing to move to suppress Palmer’s 16 statement as obtained in violation of Miranda, which the state 17 courts rejected in Palmer’s initial postconviction relief 18 proceedings) can provide cause to excuse the default of Ground 7. 19 (ECF Nos. 58 at 39; 63 at 14–16; see also ECF No. 24-6 at 4–5.) 20 In certain circumstances, counsel’s ineffectiveness in 21 failing to properly preserve a habeas claim for review in state 22 court will suffice as cause to excuse a procedural default. Edwards 23 v. Carpenter, 529 U.S. 446, 450–51 (2000) (citing Carrier, 477 24 U.S. at 488–89). “Not just any deficiency in counsel’s performance 25 will do, however; the assistance must have been so ineffective as 26 to violate the Federal Constitution.” Id. 27 For Palmer to establish cause to overcome the procedural 28 default of Ground 7, he must first demonstrate that trial counsel’s 1 performance in failing to move to suppress Palmer’s statements as 2 a violation of Miranda (as alleged in Ground 5(A)) was 3 constitutionally ineffective under Strickland v. Washington, 466 4 U.S. 668 (1984). If he does so, then counsel’s ineffectiveness, as 5 alleged in Ground 5(A), may be used as cause to set aside the 6 procedural default for corresponding claims in Ground 7. 7 Respondents concede Ground 5(A) is properly exhausted and 8 Palmer may rely upon trial counsel’s ineffective assistance as 9 alleged in Ground 5(A) as cause to overcome the procedural default 10 of Ground 7. (ECF No. 67 at 4.) Respondents request the Court defer 11 consideration of Ground 7 until review of the merits of Ground 12 5(A) because the question of prejudice is directly intertwined 13 with the merits of Grounds 5(A) and 7. (Id.) 14 The Court agrees that the question whether Palmer can overcome 15 the procedural default of Ground 7 is intertwined with the merits 16 of Ground 5(A), such that Ground 7 is better addressed in 17 conjunction with the merits of Palmer’s petition, after 18 Respondents file an answer and Palmer files a reply. 19 Thus, the Court will deny the motion to dismiss as to ground 20 7 without prejudice to Respondents asserting the procedural 21 default defense to the claim in the answer. 22 D. Grounds 8 and 9 23 Ground 8 alleges jury instructions 12 and 13 violated federal 24 due process and Ground 5(C) is a procedurally defaulted claim that 25 trial counsel was ineffective in failing to challenge those jury 26 instructions. (ECF No. 58 at 28–32, 39–40.) Likewise, Ground 9 27 alleges the felony murder theory contained in the charging 28 instrument and jury instruction 3 violated federal due process and 1 Ground 5(D) is a procedurally defaulted claim that trial counsel 2 was ineffective in failing to challenge the felony murder theory 3 contained in the information and jury instruction No. 3. (Id. at 4 32–33, 40.) 5 Respondents contend Grounds 8 and 9 were not fairly presented 6 to the state courts and are procedurally defaulted. (ECF No. 61 at 7 7–9.) Palmer concedes Grounds 8 and 9 were not fairly presented to 8 the state courts and are procedurally defaulted. (ECF No. 58 at 9 39–40.) Palmer, however, asserts he can establish cause to overcome 10 the procedural default for Grounds 8 and 9 if he overcomes the 11 procedural default for his corresponding ineffective-assistance- 12 of-counsel claims in Grounds 5(C) and 5(D). (ECF No. 63 at 16–19.) 13 As noted above, ineffective assistance of counsel can, if 14 independently pleaded and proved, establish cause for a default of 15 a habeas claim. Carpenter, 529 U.S. at 451, 453. Where the 16 corresponding ineffective assistance of counsel claim is also 17 defaulted, a petitioner must demonstrate cause and prejudice to 18 overcome the procedural default of that claim as well. Id. 19 Therefore, should Palmer overcome the procedural default of his 20 ineffective assistance of counsel claims in Ground 5(C)), and also 21 as instructed in Carpenter, demonstrate trial counsel’s 22 performance was constitutionally ineffective under Strickland as 23 alleged in Ground 5(C), then counsel’s ineffective assistance may 24 provide cause to aside the procedural default for a corresponding 25 substantive claim in Ground 8. Likewise for Grounds 5(D) and 9. 26 Respondents counter that Palmer’s approach disregards the 27 rationale of Martinez and Davila, which proscribe a narrow 28 exception to the procedural default doctrine applicable to only a 1 single claim of ineffective assistance of trial counsel. (ECF No. 2 67 at 4–5.) (quoting Davila, 137 S. Ct. at 2062, 2066.) 3 Respondents’ argument lacks merit. Respondents are correct that 4 Martinez excuses the procedural default of a single claim of 5 ineffective assistance of counsel and does not overcome the 6 procedural default of the corresponding substantive claim. 7 However, assuming the procedural default of the ineffective 8 assistance of counsel claim is overcome under Martinez, and the 9 petitioner also proves counsel was constitutionally ineffective as 10 alleged in that ineffective assistance of counsel claim, then 11 according to Carpenter, counsel’s constitutionally ineffective 12 assistance may supply cause to overcome the procedural default of 13 a corresponding substantive habeas claim. Carpenter, 529 U.S. at 14 452–53. Respondent’s reliance on Davila is also misplaced. Davila 15 held that Martinez did not extend to procedurally defaulted claims 16 of ineffective assistance of appellate counsel; it did not purport 17 to overturn or limit Carpenter. 18 The Court agrees with the parties that the issues surrounding 19 the procedural default of Grounds 8 and 9 are intertwined with the 20 procedural default and merits of the claims in Grounds 5(C) and 21 5(D), such that Grounds 8 and 9 are better addressed in conjunction 22 with the merits of Palmer’s petition, after Respondents file an 23 answer and Palmer files a reply. Therefore, the Court will deny 24 the motion to dismiss as to Grounds 8 and 9 without prejudice to 25 Respondents asserting the procedural default defense to the claim 26 in either answer. 27 /// 28 /// 1 E. Ground 10 2 Ground 10 alleges trial counsel violated Palmer’s “autonomy 3 right to control his defense” under the Fifth, Sixth, and 4 Fourteenth Amendments by conceding Palmer’s guilt for child abuse 5 without Palmer’s knowing and voluntary consent, in violation of 6 McCoy v. Louisiana, 138 S. Ct. 1500 (2018). (ECF No. 58 at 40–42.) 7 Respondents claim Ground 10 was not fairly presented to the 8 state courts, is unexhausted, and is procedurally defaulted. (ECF 9 Nos. 61 at 7–9, nn.4 & 6; 65 at 7–8.) Palmer contends Ground 10 10 was fairly presented as it was actually exhausted in his second 11 postconviction relief proceedings3 and the procedural default 12 defense is unavailable to the State because the Nevada Supreme 13 Court’s rejection on state procedural grounds was not independent 14 of, but was instead interwoven with, federal law. (ECF No. 63 at 15 22–25.) Respondents reply that the Nevada Supreme Court expressly 16 relied on independent and adequate state procedural rules NRS § 17 34.726(1) (untimely) and NRS § 34.810 (successive) to bar relief 18 for the claim and only discussed the merits of the claim in 19 determining whether there was cause to overcome the procedural 20 bars. (ECF No. 67 at 7–8.) 21 “In a habeas corpus proceeding, a federal court generally 22 ‘will not review a question of federal law decided by a state court 23 if the decision of that court rests on a state law ground that is 24 independent of the federal question and adequate to support he 25 judgment.’” McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995) 26 3 Palmer acknowledges the second amended petition states that he did not fairly 27 present this claim to the state courts, however, he contends that is a scrivener’s error, as the claim was raised in his second state postconviction 28 1 (quoting Coleman, 501 U.S. at 727–31). A state procedural bar is 2 “independent” if the state court “explicitly invokes a state 3 procedural bar rule as separate basis for its decision.” Id. 4 A state court’s decision is not independent, however, if the 5 application of the state’s default rule depends on the 6 consideration of federal law. Coleman, 501 U.S. at 735 (federal 7 courts on habeas corpus review of state prisoner claims will 8 presume there is no independent state ground for a state court 9 decision where it fairly appears to rest primarily on federal law, 10 or to be interwoven with federal law); Park v. California, 202 11 F.3d 1146, 1152–53 (9th Cir. 2000). “A state law ground is so 12 interwoven if ‘the state has made application of the procedural 13 bar depend on an antecedent ruling on federal law [such as] the 14 determination of whether federal constitutional error has been 15 committed.’” Park, 202 F.3d at 1152 (quoting Ake v. Oklahoma, 470 16 U.S. 68, 75 (1985)). Under established Ninth Circuit law, a state 17 court’s application of a state procedural bar does not 18 become interwoven with and dependent upon an antecedent federal 19 constitutional ruling where the state court discusses the merits 20 solely to determine whether the petitioner can establish cause and 21 prejudice to overcome the procedural default. Moran v. McDaniel, 22 80 F.3d 1261, 1269 (9th Cir. 1996). 23 Here, Palmer returned to state court during a stay of this 24 action to file a (second) postconviction petition claiming trial 25 counsel’s concession of guilt without Palmer’s informed consent 26 violated Palmer’s “rights to secured autonomy” under the Fifth, 27 Sixth, and Fourteenth Amendments as discussed in McCoy. (ECF No. 28 46-1 at 12–14.) The state district court denied relief finding the 1 second petition procedurally barred. (ECF No. 46-5 at 5–7.) Palmer 2 appealed and the Nevada Supreme Court affirmed ruling: 3 [A]ppellant filed his petition on May 10, 2019, more than one year after this court issued its remittitur 4 on direct appeal on February 20, 2018. See Palmer v. State, Docket No. 67565 (Order of Affirmance, January 5 25, 2018). Thus, appellant’s petition was untimely filed. See NRS 34.726(1). Moreover, appellant’s petition 6 was successive because he had previously litigated a postconviction petition for a writ of habeas corpus on 7 the merits, and it constituted an abuse of the writ to the extent that he raised claims new and different from 8 those raised in his previous petition. See NRS 34.810(1)(b)(2); NRS 34.810(2); see also Palmer v. 9 State, Docket No. 70970 (Order of Affirmance, March 15, 2018). Appellant’s petition was procedurally barred 10 absent a demonstration of good cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS 11 34.810(3). Good cause may be demonstrated by a showing that the factual or legal basis for a claim was not 12 reasonably available to be raised in a timely petition. Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506 13 (2003). Based upon our review of the record on appeal, we conclude that the district court did not err in 14 denying the petition as procedurally barred for the reasons discussed below. 15 Appellant argues that McCoy v. Louisiana, 138 S. 16 Ct. 1500 (2018), provides good cause because his trial counsel conceded his guilt without his informed consent. 17 He is mistaken, as McCoy is distinguishable. McCoy held that an attorney may not concede a defendant’s guilt of 18 a charged crime over a defendant’s express objection. 138 S. Ct. at 1509. McCoy differentiated a defendant who 19 opposed counsel’s concession from a defendant who “‘was generally unresponsive’ during discussions of trial 20 strategy, and ‘never verbally approved or protested’” the concession strategy. Id. (quoting Florida v. Nixon, 21 543 U.S. 175, 181 (2004)). McCoy did not hold that a defendant must expressly consent to a concession or that 22 a canvass must precede a concession. See id. Here, trial counsel conceded appellant’s guilt to two of the three 23 charges (child abuse) during closing arguments but disputed that appellant had committed first-degree 24 murder because the injury leading to the victim’s death was allegedly accidental. During an earlier discussion 25 on the record and outside the jury’s presence, trial counsel indicated that the defense might make 26 concessions as to the child abuse charges depending upon how appellant’s wife testified, that the strategy had 27 been discussed for over a year with appellant, but that there would be no concession to the murder charge. The 28 court then addressed appellant, explaining the State’s 1 discussed “decisions and strategies” with counsel. Appellant affirmatively indicated that he had done so. 2 He did not object to the concession strategy. Because appellant never opposed the concession strategy, McCoy 3 is distinguishable and does not provide good cause. We therefore need not decide whether McCoy applies 4 retroactively.

5 To the extent that appellant argues that trial counsel did not adequately advise him of the 6 ramifications of the concession strategy, McCoy likewise does not provide good cause. McCoy addressed “a client’s 7 autonomy, not counsel’s competence,” 138 S. Ct. at 1510, and any claims challenging trial counsel’s advice could 8 have been raised in appellant’s first, timely petition based on Nixon. 9 [FN 1] Notably, McCoy did not alter the 10 holding in Nixon. McCoy, 138 S. Ct. at 1509.

11 Therefore, we conclude that the district court did not err in determining that McCoy did not provide good 12 cause in this case and that the district court correctly applied the mandatory procedural bars. 13 [FN 2] We reject the State’s argument that a 14 claim based on McCoy can only be raised on direct appeal. A McCoy claim can be raised in 15 a postconviction habeas petition, albeit subject to the procedural bar in NRS 16 34.810(1)(b) because it could have been raised on appeal. See NRS 34.724(1) (“Any person 17 convicted of a crime and under sentence of ... imprisonment who claims that the conviction 18 Was obtained ... in violation of the Constitution of the United States or the 19 Constitution or laws of this State ... may ... file a postconviction petition for a writ of 20 habeas corpus to obtain relief from the conviction . . . .”). 21 See State v. Eighth Judicial Dist. Court (Riker), 121 22 Nev. 225, 231, 233, 112 P.3d 1070, 1074, 1075 (2005).

23 . . . . 24 (ECF No. 52-2 at 2–5.) 25 The Court finds the Nevada Supreme Court’s application of the 26 procedural bars of NRS § 34.726(1) and NRS § 34.810(2) were 27 independent of federal law because that court first invoked the 28 state procedural bars for its decision and subsequently discussed 1 the merits of Palmer’s claim only to show that Palmer did not show 2 cause and prejudice to overcome the procedural bars. The parties 3 do not dispute that the state procedural bars are adequate to 4 preclude federal review. Thus, the Court finds Ground 10 was 5 procedurally defaulted in state court on independent and adequate 6 state law grounds. 7 Where a procedural default constitutes an adequate and 8 independent state ground for denial of habeas corpus, the default 9 may be excused only if it will result in a fundamental miscarriage 10 of justice such as where a “constitutional violation has probably 11 resulted in the conviction of one who is actually innocent,” or if 12 the prisoner demonstrates cause for the default and prejudice 13 resulting from it. Carrier, 477 U.S. at 495–96. Palmer alleges 14 none of these as a basis to overcome the default of Ground 10. 15 For the foregoing reasons, Ground 10 will be dismissed with 16 prejudice as procedurally defaulted on independent and adequate 17 state grounds. 18 V. Conclusion 19 IT IS THEREFORE ORDERED that Respondents’ motion to dismiss 20 (ECF No. 61) is GRANTED IN PART AND DENIED IN PART. Grounds 6 and 21 10 of the second amended petition (ECF No. 58) are dismissed with 22 prejudice as procedurally defaulted. The motion to dismiss is 23 denied without prejudice in all other respects. 24 IT IS FURTHER ORDRERED that the Court defers consideration 25 whether petitioner can demonstrate cause and prejudice to overcome 26 the procedural defaults of Grounds 5(B)–5(F) and 7–9 until the 27 time of merits review. Respondents may reassert the procedural 28 default arguments for those claims in their answer. 1 It IS FURTHER ORDERED that Respondents’ motions for 2 enlargement of time to file a reply in support of the motion to 3 || dismiss second amended petition (ECF Nos. 64 and 65) are granted 4 nunc pro tunc to May 31, 2022, and the reply in support of motion 5 to dismiss the second amended petition (ECF No. 67) is deemed 6 || timely filed. 7 IT IS FURTHER IS ORDERED that Respondents will have 120 days 8 from the date of this order to file an answer or otherwise respond to Palmer’s remaining claims in the second amended petition. In 10 all other respects, the schedule for further proceedings set forth 11 in the scheduling order entered May 14, 2021 (ECF No. 54) will 12 remain in effect. 13 IT IS FURTHER ORDERED that the Clerk of the Court is directed 14 to substitute Tim Garrett for Respondent William Gittere. 15 DATED: this 25th day of August, 2022. 16 dual” S fit Kher 17 HOWARD D. MCKIBBEN 18 UNITED STATES DISTRICT JUDGE

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