Patterson v. Williams

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

4 Jaysen Alexander Patterson, Case No. 2:20-cv-01614-JAD-DJA

5 Petitioner v. Order Granting in Part Motion to Dismiss 6 Second Amended Petition Calvin Johnson, et al., 7 [ECF No. 36] Respondents 8 9 Counseled Nevada prisoner Jaysen Patterson brings this habeas corpus action under 28 10 U.S.C. § 2254 to challenge his 2015 state-court convictions for arson and burglary. Patterson 11 has filed a second-amended petition asserting three grounds for relief: (1) ineffective assistance 12 of trial counsel during sentencing, (2) denial of due process through bias of sentencing judge, 13 and (3) ineffective assistance of trial counsel by allowing references of juvenile history to remain 14 in a confidential mental-health evaluation.1 Respondents moved to dismiss the entire petition, 15 vaguely arguing that it is untimely because it was filed after the one-year limitation period 16 expired.2 Patterson moved to strike the dismissal motion and for respondents to provide a more 17 definite statement of their untimeliness defense.3 I granted Patterson’s motion and gave 18 respondents until February 15, 2022, to file an answer or a new motion to dismiss stating their 19 defense with sufficient particularity.4 20 Respondents timely filed a renewed motion to dismiss, arguing that Ground 1 is 21 unexhausted and Grounds 1 and 2 should be dismissed as procedurally defaulted.5 Respondents 22 do not move to dismiss Ground 3.6 Patterson admits in his response that Ground 1 is technically 23 1 ECF No. 16 (the parties disagree whether Ground 1 should be split into four subgrounds, which 24 an issue I need not and do not resolve in this order). 25 2 ECF No. 18. 3 ECF No. 28. 26 4 ECF No. 35. 27 5 ECF No. 36. 28 6 See id. 1 exhausted and defaulted but argues that he can overcome the procedural default of that claim 2 because his postconviction counsel was ineffective and the other three prongs of the Martinez v. 3 Ryan analysis are met.7 Patterson contends that Ground 2 is not procedurally defaulted because 4 the Nevada Supreme Court did not provide an adequate procedural ground for denying that 5 claim.8 6 The parties agree that whether Ground 1 is procedurally defaulted depends on whether it 7 constitutes a substantial claim of ineffective assistance of trial counsel.9 Because that question 8 appears to be intertwined with the claims’ merits, respondents ask me to defer ruling on it until I 9 adjudicate the petition’s merits. I agree and therefore defer the question of whether Ground 1 10 must be dismissed as procedurally defaulted until a decision on the petition’s merits. I also find 11 that the Nevada Supreme Court gave adequate state procedural grounds for denying the claim in 12 Ground 2. So I grant the dismissal motion as to Ground 2, defer a decision as to Ground 1 until 13 after the parties have answered and replied, and set a schedule for the parties to file their 14 remaining pleadings. 15 Discussion 16 A. Ground 1 17 Patterson argues that Ground 1 is technically exhausted. A claim that has not been 18 presented to the state court is technically exhausted if “it is clear that the state court would hold 19 the claim procedurally barred.”10 The state procedural bars that would be implicated in this case 20 are the one-year time bar11 and the bar against second or successive petitions.12 Both of these 21 procedural bars allow for an excuse upon a showing of cause and prejudice or upon a showing of 22 23

24 7 ECF No. 46. 25 8 Id. 9 ECF No. 51. 26 10 Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (internal quotation omitted). 27 11 Nev. Rev. Stat. § 34.726. 28 12 Id. at § 34.810. 1 actual innocence. And the standards that the state courts apply are substantially the same as the 2 standards that federal courts apply.13 3 Petitioners who claim technical exhaustion by procedural default are rarely able to 4 establish cause and prejudice or actual innocence to excuse the default. On one hand, if a 5 petitioner has a viable argument for cause and prejudice or actual innocence under the 6 substantially similar state and federal standards, then the petitioner cannot establish that “it is 7 clear that the state court would hold the claim procedurally barred,”14 and the ground is not 8 technically exhausted. On the other hand, if a petitioner has no arguments for cause and 9 prejudice or actual innocence, then the ground is technically exhausted but also subject to 10 dismissal as procedurally defaulted. 11 But when federal law recognizes a potential basis to excuse a procedural default and the 12 Nevada state courts do not, then the petitioner can argue in federal court that a ground is 13 technically exhausted and that an excuse for the procedural default exists. Ineffective-assistance- 14 of-trial-counsel claims allow a petitioner to do that. The United States Supreme Court held in 15 Martinez v. Ryan that ineffective assistance of state postconviction counsel, or the lack of 16 counsel in state postconviction proceedings, possibly can excuse a procedurally defaulted claim 17 of ineffective assistance of trial counsel.15 A petitioner must demonstrate that (1) the claim of 18 ineffective assistance of trial counsel is substantial; (2) ineffective assistance of post-conviction 19 counsel (or lack of counsel) is the cause of the default; (3) the post-conviction proceedings were 20 the initial review proceedings for the ineffective-assistance-of-trial-counsel claim; and (4) state 21 law requires, or practically requires, that the claim be raised in the initial post-conviction 22 proceedings.16 23 24

25 13 Compare Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2004), with Mitchell v. State, 149 P.3d 33, 36 (Nev. 2006). 26 14 Sandgathe, 314 F.3d at 376. 27 15 Martinez v. Ryan, 566 U.S. 1 (2012). 28 16 Trevino v. Thaler, 569 U.S. 413, 423 (2013). 1 The Nevada Supreme Court has declined to recognize cause under Martinez as cause to 2 overcome a state-law procedural bar.17 So a Nevada habeas petitioner who relies on Martinez— 3 and only Martinez—as a basis for overcoming a state procedural bar on an unexhausted claim 4 can argue that the state courts would hold the claim procedurally barred, but that he nonetheless 5 has a potentially viable argument for cause and prejudice under federal law. 6 Patterson relies on Martinez to overcome a procedural default of Ground 1.18 It doesn’t 7 appear from the current briefing that Patterson has other potentially viable bases for 8 demonstrating cause and prejudice that might be recognized by the state courts, which would 9 preclude a finding of technical exhaustion by procedural default for that claim. I find that a 10 cause-and-prejudice analysis under Martinez for Ground 1 is appropriate here, but I’ll wait to 11 resolve it until after the parties have answered and replied, addressing the claims on their merits. 12 That way, I will have the benefit of analyzing all of Patterson’s claims against a fully developed 13 factual and legal backdrop. 14 B. Ground 2 15 In Ground 2, Patterson argues that he was denied due process because the state 16 sentencing judge was biased against the charge of arson and anyone charged with that crime.19 17 Patterson did not raise this claim in the direct appeal of his convictions that he filed in July 18 2015.20 But he did raise it in his proper person postconviction state petition.21 The state district 19 court reached the merits of this claim, concluding that the record supports Patterson’s argument 20 and he should be given a new sentencing hearing.22 21 The Nevada Supreme Court reversed, finding that the state court erred in granting relief 22 on the judicial-bias claim because it was procedurally defaulted—Patterson waived that claim 23

24 17 Brown v. McDaniel, 331 P.3d 867 (Nev. 2014). 25 18 ECF No. 46 at 4–11. 19 ECF No. 16 at 11–14. 26 20 ECF No. 38-12. 27 21 ECF No. 38-22 at 31–37. 28 22 ECF No. 41-4 at 13. 1 “by pleading guilty and not raising it on direct appeal” and it “fell outside the limited scope of a 2 postconviction habeas petition that challenges a judgment of conviction based on a guilty plea as 3 set forth in NRS 34.810(1)(a).”23 The Nevada Supreme Court also noted that the Nevada Court 4 of Appeals, in rejecting Patterson’s challenge to his sentence on direct appeal, concluded “that 5 the sentencing judge had not closed her mind to the evidence” and “[t]hat decision is the law of 6 the case on those matters.”24 Respondents move to dismiss Ground 2, arguing that claim was 7 decided on an independent and adequate state procedural ground. Patterson responds that NRS 8 34.810(1)(a) is not adequate because it is not consistently applied and is subject to changing state 9 authority.25 He does not argue that any procedural default of Ground 2 should be excused.26 10 “For a state procedural rule to prevent federal review of federal claims, the state’s rule 11 must be both adequate and independent.”27 In the habeas context, the Supreme Court has held 12 that it “will not review a question of federal law decided by a state court if the decision of that 13 court rests on a state law ground that is independent of the federal question and adequate to 14 support the judgment.”28 “The doctrine applies to bar federal habeas when a state court declined 15 to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural 16 requirement.”29 17 “In order for a state procedural rule to preclude federal review, the rule must be ‘firmly 18 established and regularly followed.’”30 “The Ninth Circuit has elaborated that a state rule must 19 be clear, consistently applied, and well-established at the time of the petitioner’s purported 20 default.”31 “If a state procedural rule is not well-established before a petitioner supposedly 21 23 ECF 43-15 at 2 (citing Franklin v. State, 877 P.2d 1058, 1059 (Nev. 1994)). 22 24 Id. at 3 n.1 (citations omitted). 23 25 ECF No. 46 at 11–14. 26 See id. 24 27 Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 25 722, 729 (1991)). 28 Id. at 1283–84 (quoting Coleman, 501 U.S. at 729). 26 29 Id. at 1284 (quoting Coleman, 501 U.S. at 729–30). 27 30 Id. (quoting Ford v. Georgia, 498 U.S. 411, 423–24 (1991)). 28 31 Id. (quotation omitted). 1 breaks the rule, then the rule cannot prevent federal review of the petitioner’s federal claims.”32 2 “Although the state is not required to articulate every permutation of every rule, a rule held 3 generally adequate can be deemed inadequate as applied to particular unique circumstances.”33 4 “Once a petitioner has demonstrated the inadequacy of a rule, the state bears the ultimate burden 5 of proving the rule bars federal review.”34 6 NRS 38.810(1)(a) requires the state district court to dismiss a habeas petition if “[t]he 7 petitioner’s conviction was upon a plea of guilty . . . and the petition is not based upon an 8 allegation that the plea was involuntarily or unknowingly entered or that plea was entered 9 without effective assistance of counsel.” Patterson argues that NRS 34.810(1)(a) is not 10 consistently applied because the Nevada Supreme Court recently ruled in Gonzales v. State that 11 the statute “does not bar post-conviction challenges to sentencing claims following a guilty 12 plea.”35 Respondents disagree, arguing that Patterson overreads Gonzales’s reach.36 13 Respondents also argue that Gonzales cannot shift the initial burden about adequacy to them 14 because it was decided six years after Patterson defaulted by failing to assert his judicial-bias 15 claim in his direct appeal.37 16 Importantly, Gonzales does not concern a judicial-bias-at-sentencing claim. The central 17 issue in Gonzales was whether NRS 34.810(1)(a) precludes an ineffective-assistance-of- 18 sentencing-counsel claim.38 It has long been the rule in Nevada that “challenges to the validity 19 of a guilty plea and claims of ineffective assistance of trial and appellate counsel must be first 20 pursued in post-state conviction proceedings in the district court.”39 But “all other claims that 21 32 Id. 22 33 Id. (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002); Bargas v. Burns, 179 F.3d 1207, 1213 23 (9th Cir. 1999) (internal quotation omitted)). 34 Id. (citing Bennett v. Mueller, 322 F.3d 573, 585–86 (9th Cir. 2003)). 24 35 ECF No. 46 at 12 (emphasis omitted) (citing Gonzales v. State, 492 P.3d 556 (Nev. 2021)). 25 36 ECF No. 51 at 3–6. 26 37 Id. at 5 n.3 (citing Bennett v. Mueller, 322 F.3d 573, 585–87 (9th Cir. 2003)). 38 Gonzales, 492 P.3d at 559. 27 39 Franklin v. State, 877 P.2d 1058, 1059 (Nev. 1994), disapproved on other grounds by Thomas 28 v. State, 979 P.2d 222 (Nev. 1999). 1 are appropriate for direct appeal must be pursued on direct appeal, or they will be considered 2 waived in subsequent proceedings.”40 Included among the claims that will be considered waived 3 if not raised in a direct appeal is “a claim that the district court entertained an actual bias or that 4 there were other conditions that rendered the proceedings unfair.”41 5 Gonzales does not alter this landscape. Indeed, writing for the full Nevada Supreme 6 Court, Justice Stiglich summarized: “we explicitly hold today what has been implicit in our 7 caselaw for decades.”42 “The core claims prohibited by NRS 34.810(1)(a) are ‘independent 8 claims relating to the deprivation of constitutional rights that occurred prior to the entry of the 9 guilty plea’ that do not allege that the guilty plea was entered involuntarily or unknowingly or 10 without effective assistance of counsel.”43 “Those claims are ‘waived’ by the guilty plea.”44 11 “But where a petitioner argues that he or she received ineffective assistance of counsel at 12 sentencing, he or she could not have raised that claim before entering his or her plea.”45 And 13 “[i]t would violate the spirit of our habeas statute and the public policy of this state to prohibit 14 him or her from ever raising that claim in state court.”46 15 In reaching this conclusion, the Court noted it has “recognized [that] claims that could 16 have been raised on direct appeal, but were not, are waived in subsequent proceedings.”47 But it 17 has also “entertained ineffective-assistance-of-counsel claims arising after the plea while 18 rejecting other independent claims presented in the same petition as barred under NRS 19 34.810(1)(a), thus implicitly recognizing the limitations of the statute.”48 And considering NRS 20 40 Id. 21 41 Id. 22 42 Gonzales, 492 P.3d at 562. 43 Id. 23 44 Id. 24 45 Id. 25 46 Id. 47 Id. at 560 (citing Franklin, 877 P.2d at 1059). 26 48 Id. at 561–62 (citing Toston v. State, 267 P.3d 795, 800–01 (Nev. 2011) (explaining claims 27 that the prosecutor committed misconduct and the district court abused its discretion “are outside the scope of claims that may be raised in a post-conviction habeas petition challenging a 28 conviction that is based on a guilty plea”)). 1 Chapter 34 as a whole, the Court explained, “it is clear that the Legislature meant to provide one 2 remedy, not more, and thus barred petitioners from raising most claims that were or should have 3 been raised earlier.”49 4 Gonzales doesn’t state that all sentencing claims can now be raised in a postconviction 5 petition. It simply makes clear that NRS 34.810(1)(a) “preclude[s] wasteful litigation of certain 6 pre-plea violations,”50 and it preserves the Legislature’s intention to provide one remedy by 7 explicitly stating that ineffective-assistance-at-sentencing claims can be brought in 8 postconviction petitions. Respondents point out in their reply that the Nevada Supreme Court 9 determined that Patterson’s judicial-bias claim was waived because he pled guilty and did not 10 raise it on direct appeal. Gonzales explicitly acknowledged that procedural bar and did not alter 11 it. So I do not find that Gonzales raises a genuine question whether the procedural bars that the 12 Nevada Supreme Court applied to preclude Patterson’s judicial-bias claim are inadequate, and I 13 grant the dismissal motion as to Ground 2. 14 Conclusion 15 IT IS THEREFORE ORDERED that respondents’ Renewed Motion to Dismiss Second 16 Amended Petition for Writ of Habeas Corpus [ECF No. 36] is GRANTED IN PART: 17 • Ground 1 is actually unexhausted but technically exhausted because it would be 18 procedurally barred by the state courts. But a decision on whether Patterson can 19 demonstrate cause and prejudice under Martinez is DEFERRED until after the 20 parties have answered and replied; and 21 • Ground 2 is dismissed as procedurally barred. 22 IT IS FURTHER ORDERED that respondents have until September 26, 2022, to file 23 and serve an answer to Patterson’s remaining grounds for relief: 1 and 3. The answer must 24 contain all substantive and procedural arguments as to all surviving grounds of the petition, 25 including whether Ground 1 is barred by procedural default under federal law. The answer must 26

27 49 Id. at 560 (citing Nev. Rev. Stat. § 34.810(2); Harris v. State, 329 P.3d 619 (Nev. 2014)). 28 50 Id. at 561. 1 || also comply with Rule 5 of the Rules Governing Proceedings in the United States District Courts 2 || under 28 U.S.C. § 2254. Petitioner Patterson will then have 30 days following service of 3 || respondents’ answer to file a reply.

5 US. DistisiJullee Jendifey A. Dorsey ‘ Dated: August 23, 2022

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