Proctor v. Najera

Opinion

1 2 3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * * 6 ROBIN PROCTOR, Case No. 2:22-cv-00684-MMD-EJY

7 Petitioner, ORDER

8 v. 9 WARDEN NAJERA, et al., 10 Respondents. 11 12 I. SUMMARY 13 In her pro se 28 U.S.C. § 2254 habeas corpus petition, Robin Proctor challenges 14 her Clark County, Nevada conviction under a guilty plea of murder with use of a deadly 15 weapon. (ECF No. 5.) Respondents have moved to dismiss the petition as untimely and 16 containing claims that are unexhausted, procedurally defaulted, and noncognizable. (ECF 17 No. 16 (“Motion”).) Because the petition is untimely and Proctor presents no basis to toll 18 the statute of limitations, the Court grants the Motion. 19 II. BACKGROUND 20 A. State-Court Proceedings 21 Proctor’s guilty plea arose from an incident in which she and another woman 22 brutally beat and robbed an 85-year-old man with whom Proctor was in a relationship. 23 The man died at the hospital from blunt force trauma. (Exh. 11, ECF No. 19-1, Exh. 35, 24 ECF No. 17-35.) The state district court sentenced Proctor to a term of 20 years to life in 25 prison for the murder count, with a consecutive 24 to 240 months for the deadly weapon 26 27 28 1 enhancement, for an aggregate total sentence of 22 years to life. (Exh. 12, ECF No. 17- 2 12.) Judgment of conviction was entered on July 10, 2017. (Exh. 13, ECF No. 17-13.)1 3 Proctor did not file a direct appeal. She filed a state postconviction habeas corpus 4 petition on February 8, 2019. (Exh. 24, ECF No. 17-24.) Through counsel, she filed a 5 supplemental petition on October 6, 2019. (Exh. 31, ECF No. 17-31.) The state district 6 court denied the petition, concluding that it was procedurally defaulted as untimely, and 7 Proctor failed to demonstrate good cause and prejudice to excuse the default. (Exh. 35, 8 ECF No. 17-35.) The Nevada Court of Appeals affirmed the denial of the petition. (Exh. 9 57, ECF No. 17-57.) 10 B. Federal Habeas Proceedings 11 About February 2022, Proctor dispatched her pro se federal habeas petition for 12 mailing. (ECF No. 1-1.) She alleges two grounds for relief:

13 Ground 1: Ineffective assistance of counsel for failure to investigate her claims or present a defense. 14 Ground 2: The Nevada state laws regarding procedural bars violate 15 Fourteenth Amendment due process. 16 (ECF No. 5 at 3-8.) 17 Proctor moved for appointment of counsel, which the Court denied. (ECF Nos. 13, 18 25.) Respondents now move to dismiss the petition as untimely and procedurally 19 defaulted. (ECF No. 16.) Proctor filed several responses to the petition. (ECF Nos. 26, 20 27, 29, 33.) Respondents replied. (ECF No. 31.) Because the petition is time-barred, the 21 Court grants the Motion. 22 III. DISCUSSION 23 A. Proctor’s Federal Petition is Untimely 24 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year 25 statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. § 2244(d). 26 The one-year time limitation can run from the date on which a petitioner’s judgment 27 1An amended judgment of conviction was entered on July 28, 2017, to correct a 28 clerical error and to properly reflect a Category A felony. (Exh. 15, ECF No. 17-15.) 1 became final by conclusion of direct review, or the expiration of the time for seeking direct 2 review. 28 U.S.C. § 2244(d)(1)(A). Where a defendant fails to seek direct review of their 3 judgment of conviction before the state appellate court, the one-year period of limitations 4 begins to run 30 days after the entry of the judgment of conviction. NRAP 4(b)(1)(A); 5 Gonzalez v. Thaler, 565 U.S. 134, 149-150 (2012). 6 Here, the state district court entered the judgment of conviction on July 10, 2017. 7 Proctor did not file a direct appeal; therefore, her judgment of conviction became final 30 8 days later on August 9, 2017. Her one-year AEDPA statute of limitations began to run on 9 August 10, 2017, the day after her time to seek a direct appeal expired, and absent tolling, 10 expired on August 10, 2018. 28 U.S.C. § 2244(d)(1)(A). Proctor did not file her federal 11 habeas petition until February 2022. (ECF No. 5.) 12 A properly filed petition for state postconviction relief can toll the period of 13 limitations. 28 U.S.C. § 2244(d)(2). A state petition is not deemed “properly filed” if it is 14 untimely under state procedural rules. Pace v. DiGuglielmo, 544 U.S. 408, 412-16 (2005). 15 “When a postconviction petition is untimely under state law, ‘that [is] the end of the matter’ 16 for the purposes of § 2244(d)(2).” Id. at 414. Under Nevada state law, a habeas petition 17 must be filed within one year after entry of the judgment of conviction if no appeal is taken. 18 NRS § 34.726(1). 19 Here, Proctor filed her state petition on February 8, 2019, more than a year after 20 entry of the judgment of conviction on July 10, 2017. (Exh. 24, ECF No. 17-24, Exh. 13, 21 ECF No. 17-13.) The Nevada Court of Appeals affirmed the denial of the petition as 22 untimely under NRS § 34.726(1). (Exh. 57, ECF No. 17-57.) An untimely state 23 postconviction petition will not toll the AEDPA limitations period. Moreover, the AEDPA 24 limitations period had already expired before Proctor filed her (untimely) state 25 postconviction petition. Proctor’s federal petition is untimely. 26 First, Proctor appears to argue in response that medical issues including “nervous 27 breakdowns,” ulcers, and anemia prevented her from timely filing her state petition and 28 1 should excuse the procedural default of that petition. (ECF Nos. 26, 29, 33.) But an 2 untimely state postconviction petition cannot toll the AEDPA limitations period. See 28 3 U.S.C. § 2244(d)(2); Pace, 544 U.S. at 417; Orpiada v. McDaniel, 750 F.3d 1086, 1087 4 (9th Cir. 2014). 5 Second, a petitioner may be entitled to equitable tolling of the AEDPA limitations 6 period if she can show: “‘(1) that she has been pursuing her right diligently, and that (2) 7 some extraordinary circumstance stood in her way’ and prevented timely filing.” Holland 8 v. Florida, 560 U.S. 631, 649 (2009) (quoting prior authority). Equitable tolling is 9 “unavailable in most cases,” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and 10 “the threshold necessary to trigger equitable tolling is very high, lest the exceptions 11 swallow the rule,” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002). Equitable tolling 12 may be available when a petitioner suffered from a mental impairment so severe that the 13 petitioner was unable personally to either understand the need to timely file or prepare a 14 habeas petition and that impairment made it impossible under the totality of the 15 circumstances to meet the filing deadline despite petitioner’s diligence. Bills v. Clark, 628 16 F.3d 1092, 1093 (9th Cir. 2010.) Recently, the Ninth Circuit held that a petitioner “must 17 show that he has been reasonably diligent in pursuing his rights not only while an 18 impediment to filing caused by an extraordinary circumstance existed, but before and 19 after as well, up to the time for filing his claim in federal court.” Smith v. Davis 953 F.3d 20 598-599 (9th Cir. 2020). 21 To the extent that Proctor’s vague arguments could be construed as claiming 22 equitable tolling of her federal petition, she has not demonstrated that she is entitled to 23 such tolling. She has made bare assertions, with no elaboration whatsoever, that her 24 medical records would show medical and mental health issues. (ECF Nos. 30, 34.) She 25 vaguely refers to nervous breakdowns in July 2018, a death in the family, ulcers, and 26 anemia. (ECF No. 26.) These brief, opaque averments do not show any impairment that 27 would rise to an extraordinary circumstance that stood in the way of her timely filing. 28 1 Neither has she shown reasonable diligence. Proctor is not entitled to statutory or 2 equitable tolling. The Court, accordingly, dismisses her petition as untimely. 3 B. Grounds 1 and 2 are also Unexhausted/Procedurally Barred from Federal Review 4 5 Proctor claims in ground 2 that Nevada’s statutory procedural bars violate due 6 process. (ECF No. 5 at 6-7.) She did not present this claim in her state postconviction 7 petition, so it is unexhausted. (See Exh. 24, ECF No. 17-24, Exh. 31, ECF No. 17-31, 8 Exh. 48, ECF No. 17-48, Exh. 57, ECF No. 17-57.) Proctor claims in ground 1 that her 9 plea counsel rendered ineffective assistance for failure to investigate and present a 10 defense. (ECF No. 5 at 3-4.) She raised this claim in her state postconviction petition, 11 which the state courts denied as untimely and procedurally barred under state law. 12 Regarding exhaustion, a federal court will not grant a state prisoner’s petition for 13 habeas relief until the prisoner has exhausted his available state remedies for all claims 14 raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give 15 the state courts a fair opportunity to act on each of their claims before the petitioner 16 presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 17 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains 18 unexhausted until the petitioner has given the highest available state court the opportunity 19 to consider the claim through direct appeal or state collateral review proceedings. See 20 Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 21 376 (9th Cir. 1981). 22 With respect to procedural default, the Court cannot review a claim “if the Nevada 23 [appellate court] denied relief on the basis of ‘independent and adequate state procedural 24 grounds.’” Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003). In Coleman v. 25 Thompson, the Supreme Court held that a state prisoner who fails to comply with the 26 state’s procedural requirements in presenting their claims is barred from obtaining a writ 27 of habeas corpus in federal court by the adequate and independent state ground doctrine. 28 1 See 501 U.S. 722, 731-32 (1991). A state procedural bar is “adequate” if it is “clear, 2 consistently applied, and well-established at the time of the petitioner’s purported default.” 3 Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). A 4 state procedural bar is “independent” if the state court “explicitly invokes the procedural 5 rule as a separate basis for its decision.” Yang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 6 2003). 7 Turning to ground 1, the Nevada Court of Appeals affirmed the trial court’s denial 8 of Proctor’s state habeas petition because it was procedurally barred as untimely. (Exh. 9 57, ECF No. 17-57.) See also NRS 34.726(1). Nevada’s statutory rule regarding 10 timeliness is an independent and adequate state law ground for procedural default. See, 11 e.g., Moran v. McDaniel, 80 F.3d 1261, 1268-70 (9th Cir. 1996). The state appellate court 12 also specifically held that Proctor failed to demonstrate good cause to excuse the 13 procedural bars. (Exh. 57 at 2, ECF No. 17-57.) 14 Ground 2 is unexhausted and would be procedurally defaulted as untimely and 15 successive if Proctor returned to state court to present this claim. See Dickens v. Ryan, 16 740 F.3d 1302, 1317 (9th Cir. 2014) (citing Coleman, 501 U.S. at 731 (“An unexhausted 17 claim will be procedurally defaulted, if state procedural rules would now bar the petitioner 18 from bringing the claim in state court.”)). Thus, even if this petition was timely, the grounds 19 are procedurally barred from federal habeas review. 20 C. Ground 2 is Noncognizable 21 A state prisoner is entitled to federal habeas relief only if she is being held in 22 custody in violation of the constitution, laws, or treaties of the United States. 28 U.S.C. § 23 2254(a). Alleged errors in the interpretation or application of state law do not warrant 24 habeas relief. Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir. 2004); see also Murdoch 25 v. Castro, 365 F.3d 699, 703 n.1 (9th Cir. 2004) (citing Jammal v. Van de Kamp, 926 F.2d 26 918, 919 (9th Cir. 1991)) (“We are not a state supreme court of errors . . . . On federal 27 habeas we may only consider whether the petitioner’s conviction violated constitutional 28 1 norms.”); Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990) (“noting that [the federal court] 2 ha[s] no authority to review a state’s application of its own laws”). 3 Ground 2 is a challenge to the validity of Nevada state law regarding procedural 4 bars. A petitioner may not merely label an issue as one of “due process” without 5 identifying an issue cognizable on federal habeas review. Ground 2, therefore, would also 6 be subject to dismissal as noncognizable in federal habeas corpus. 7 IV. MOTION TO SEAL 8 Finally, Respondents have filed a motion for leave to file an exhibit in camera and 9 under seal. (ECF No. 18.) While there is a presumption favoring public access to judicial 10 filings and documents, a party seeking to seal a judicial record may overcome the 11 presumption by demonstrating “compelling reasons” that outweigh the public policies 12 favoring disclosure. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 13 (1978); Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) 14 (citations omitted). In general, “compelling reasons” exist where the records may be used 15 for improper purposes. Kamakana, 447 F.3d at 1179 (citing Nixon, 435 U.S. at 598). 16 Here, Respondents ask to file Proctor’s presentence investigation report (“PSI”) in 17 camera and under seal because it is confidential under state law. They also state that it 18 contains sensitive, private information that could compromise Proctor’s safety. The Court 19 has reviewed the PSI and concludes that Respondents have demonstrated compelling 20 reasons to file the PSI under seal. However, the PSI does not appear to include 21 information that is so sensitive to warrant in camera filing.2 Accordingly, the Court grants 22 the motion in part, and the PSI will remain under seal. 23 V. CERTIFICATE OF APPEALABILITY 24 This is a final order adverse to Proctor. Rule 11 of the Rules Governing Section 25 2254 Cases thus requires this Court to issue or deny a certificate of appealability (“COA”). 26 2While Respondents point out that they have extensive experience filing 27 documents of this type under seal with this Court, and they are correct that PSIs are frequently filed under seal, they do not explain why in camera treatment would be 28 necessary. (See Exh. 18.) 1 || Accordingly, the court has sua sponte evaluated the claims within the petition for 2 || suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 3 || F.3d 851, 864-65 (9th Cir. 2002). 4 Under 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has 5 || made a substantial showing of the denial of a constitutional right.” With respect to claims 6 || rejected on the merits, a petitioner “must demonstrate that reasonable jurists would find 7 || the district court's assessment of the constitutional claims debatable or wrong.” Slack v. 8 || McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 9 || (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate: 10 || (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) 11 || whether the court’s procedural ruling was correct. /d. 12 Having reviewed its determination that Proctor’s petition is time-barred and 13 || procedurally barred from federal habeas review, the Court finds that these rulings do not 14 || meet the S/ack standard. Applying these standards, the Court finds that a certificate of 15 || appealability is unwarranted and therefore declines to issue a certificate of appealability 16 || for the dismissal of Proctor’s petition. 17 || VI. CONCLUSION 18 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 16) is 19 || granted. 20 It is further ordered that the petition (ECF No. 5) is dismissed as untimely. 21 It is further ordered that Respondents’ motion for leave to file exhibit in camera and 22 || under seal (ECF No. 18) is granted in part and denied in part. The exhibit will remain 23 || under seal. 24 It is further ordered that a certificate of appealability will not issue. 25 The Clerk of Court is directed to enter judgment accordingly close this case. 26 DATED THIS 5" Day of September 2023. ( | , 27 MIRANDA M* DU 38 CHIEF UNITED STATES DISTRICT JUDGE