1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 DEON D. SMALLEY, Case No. 3:21-cv-00331-APG-CLB 4 Petitioner, 5 ORDER v. 6 RONALD OLIVER, et al., 7 Respondents. 8
9 10 In this habeas corpus action, the respondents filed a motion to dismiss on May 30, 2023. 11 ECF No. 31. Petitioner Deon D. Smalley, who is represented by appointed counsel, filed an 12 opposition (ECF No. 39) and the respondents filed a reply (ECF No. 49). The respondents argue 13 that Smalley has not exhausted his state court remedies with respect to any of the claims in his 14 amended habeas petition in this action. I agree that Smalley’s claims are all unexhausted in state 15 court. I will grant the respondents’ motion to dismiss in part and deny it in part. I will grant 16 Smalley an opportunity to move for a stay pending his exhaustion of claims in state court. If 17 Smalley does not make such a motion within the time allowed, I will dismiss this action. 18 On January 25, 2017, Smalley was convicted in Nevada’s Eighth Judicial District Court 19 of attempted murder with the use of a deadly weapon, attempted invasion of the home with the 20 use of a deadly weapon, attempted burglary while in possession of a firearm, battery with the use 21 of a deadly weapon resulting in substantial bodily harm, ownership or possession of a firearm by 22 a prohibited person, and discharge of a firearm from or within a structure or vehicle. ECF No. 23 32-50. He was sentenced to an aggregate total sentence of 40 years in prison with parole 24 eligibility after 10 years. Id. Smalley appealed, and the Nevada Court of Appeals affirmed his 25 conviction and sentence on June 13, 2018. ECF No. 33-29. 26 On March 29, 2019, Smalley, acting pro se, filed a petition for writ of habeas corpus in 27 state court. ECF Nos. 33-34, 33-35, 33-36, 33-38. In his amended habeas petition in this case 1 (ECF No. 30) Smalley describes, as follows, the proceedings in his state habeas action and, for 2 purposes of this order only, I accept his description of those proceedings:
3 On July 16, 2019, the trial court entered a 44-page order purportedly denying Mr. Smalley relief, denying an evidentiary hearing, and denying the 4 appointment of habeas counsel. Ex. 59 [ECF No. 30-3, pp. 449–93]. Although the order was signed by the trial judge, it was drafted and submitted by the state, and 5 it thus tracked the state’s opposition brief virtually word-for-word. Id.
6 On July 30, 2019 Mr. Smalley moved the trial court for reconsideration, arguing, inter alia, that it never ruled on his denial of counsel claim, supra. Ex. 60 7 at 14 [ECF No. 30-3 at 508]. The trial court did not respond to Mr. Smalley’s motion. See Ex. 77 [ECF No. 30-4, pp. 140–52]. 8 On August 1, 2019, Mr. Smalley appealed the trial court’s purported 9 denial of his habeas corpus petition. Ex. 61 [ECF No. 30-4, pp. 6–10].
10 * * *
11 On April 16, 2020, the Nevada Supreme Court transferred Mr. Smalley’s appeal to the Nevada Court of Appeals. [Ex. 64, pp. 62–63]. On September 4, 12 2020, the court of appeals entered an order dismissing Mr. Smalley’s appeal based on a jurisdictional defect outside of Mr. Smalley’s control. Ex. 66 [ECF No. 30-4, 13 pp. 78–80]. Specifically, the court found that the trial court never ruled on Mr. Smalley’s denial of counsel claim…. Id. Because the trial court’s “order 14 purportedly denying Smalley’s petition did not resolve all of the claims raised in the petition[,]” it did not constitute a “final order” under Nevada law, and the 15 appellate court thus held that it lacked jurisdiction to consider Mr. Smalley’s appeal. Id. 16 On remand, Mr. Smalley promptly cited the appellate court’s dismissal 17 and moved, within days, for the trial court to resolve all of his claims. Ex. 67 [ECF No. 30-4, pp. 81–89]. 18 As of October 29, 2020, the trial court had taken no further action on 19 Mr. Smalley’s habeas corpus petition, so he filed another motion for reconsideration, again invoking the appellate court’s dismissal order. Ex. 68 20 [ECF No. 30-4, pp. 90–101]; Ex. 69 [ECF No. 30-4, pp. 102–03].
21 In tandem with these proceedings, Mr. Smalley filed a time computation habeas corpus petition—which was distinct from his substantive habeas petition 22 but submitted on the same docket—in which he challenged the state’s calculation of his sentence. Ex. 65 [ECF No. 30-4, pp. 64–77]. Pursuant to Nevada venue 23 law, the trial court (Hon. Joe Hardy, J. [Eighth Judicial District Court]) transferred the time computation petition—and that petition only—to the Seventh Judicial 24 District Court on November 24, 2020. Ex. 70 [ECF No. 30-4, pp. 104–06]. A judge of the Seventh Judicial District (Hon. Gary D. Fairman, J.) rejected the time 25 computation petition on February 5, 2021. Ex. 71 [ECF No. 30-4, pp. 107–10].
26 As of March 29, 2021, the trial court had still taken no additional action on Mr. Smalley’s substantive habeas corpus petition, so Mr. Smalley filed a third 27 motion for relief—this time framed as a motion to address the jurisdictional 1 The same day, the trial court clerk set a hearing date of May 3, 2021 on Mr. Smalley’s motion to address the jurisdictional defect. Ex. 73 [ECF No. 30-4, 2 pp. 130–31]. On April 30, 2021, however, the court (Hon. Erika Ballou, J.) vacated the hearing, ordered the state to file a response by June 14, 2021, and set 3 a new hearing date of June 30, 2021. Ex. 74 [ECF No. 30-4, pp. 132–33].
4 June 14, 2021 came and went, but the state never filed a response as directed. Ex. 77 [ECF No. 30-4, pp. 140–52]. 5 On the scheduled hearing date of June 30, 2021, the trial court filed 6 minutes in which it removed Mr. Smalley’s case from calendar based on an erroneous determination that his substantive habeas petition had been transferred 7 to the Seventh Judicial District Court on November 30, 2020—even though, as noted, only Mr. Smalley’s time computation petition was transferred on 8 November 24. Ex. 75 [ECF No. 30-4, pp. 134–35]; Ex. 70 [ECF No. 30-4, pp. 104–06]. On July 9, 2021, the court followed up with a written order 9 reiterating the same inaccurate conclusion, opining that it lacked jurisdiction over Mr. Smalley’s petition, and (again) vacating the hearing. Ex. 76 [ECF No. 30-4, 10 pp. 136–39]. 11 ECF No. 30, pp. 10–12. 12 A federal court generally may not grant relief on a habeas corpus claim not exhausted in 13 state court. See 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal- 14 state comity, and is designed to give state courts the initial opportunity to correct alleged 15 constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, 16 a petitioner must fairly present that claim to the highest available state court and must give that 17 court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) 18 (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). 19 Smalley did not raise any of his current claims in state court on his direct appeal. 20 Compare ECF No. 30 (amended petition in this action) with ECF No. 33-15 (opening brief on 21 direct appeal). He contends, though, that he raised all his current claims in his state court habeas 22 petition. See ECF No. 39, pp. 7–9. 23 But in his state habeas action, Smalley’s claims have not been presented to any state 24 appellate court in a manner giving the court an opportunity to address and resolve them.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 DEON D. SMALLEY, Case No. 3:21-cv-00331-APG-CLB 4 Petitioner, 5 ORDER v. 6 RONALD OLIVER, et al., 7 Respondents. 8
9 10 In this habeas corpus action, the respondents filed a motion to dismiss on May 30, 2023. 11 ECF No. 31. Petitioner Deon D. Smalley, who is represented by appointed counsel, filed an 12 opposition (ECF No. 39) and the respondents filed a reply (ECF No. 49). The respondents argue 13 that Smalley has not exhausted his state court remedies with respect to any of the claims in his 14 amended habeas petition in this action. I agree that Smalley’s claims are all unexhausted in state 15 court. I will grant the respondents’ motion to dismiss in part and deny it in part. I will grant 16 Smalley an opportunity to move for a stay pending his exhaustion of claims in state court. If 17 Smalley does not make such a motion within the time allowed, I will dismiss this action. 18 On January 25, 2017, Smalley was convicted in Nevada’s Eighth Judicial District Court 19 of attempted murder with the use of a deadly weapon, attempted invasion of the home with the 20 use of a deadly weapon, attempted burglary while in possession of a firearm, battery with the use 21 of a deadly weapon resulting in substantial bodily harm, ownership or possession of a firearm by 22 a prohibited person, and discharge of a firearm from or within a structure or vehicle. ECF No. 23 32-50. He was sentenced to an aggregate total sentence of 40 years in prison with parole 24 eligibility after 10 years. Id. Smalley appealed, and the Nevada Court of Appeals affirmed his 25 conviction and sentence on June 13, 2018. ECF No. 33-29. 26 On March 29, 2019, Smalley, acting pro se, filed a petition for writ of habeas corpus in 27 state court. ECF Nos. 33-34, 33-35, 33-36, 33-38. In his amended habeas petition in this case 1 (ECF No. 30) Smalley describes, as follows, the proceedings in his state habeas action and, for 2 purposes of this order only, I accept his description of those proceedings:
3 On July 16, 2019, the trial court entered a 44-page order purportedly denying Mr. Smalley relief, denying an evidentiary hearing, and denying the 4 appointment of habeas counsel. Ex. 59 [ECF No. 30-3, pp. 449–93]. Although the order was signed by the trial judge, it was drafted and submitted by the state, and 5 it thus tracked the state’s opposition brief virtually word-for-word. Id.
6 On July 30, 2019 Mr. Smalley moved the trial court for reconsideration, arguing, inter alia, that it never ruled on his denial of counsel claim, supra. Ex. 60 7 at 14 [ECF No. 30-3 at 508]. The trial court did not respond to Mr. Smalley’s motion. See Ex. 77 [ECF No. 30-4, pp. 140–52]. 8 On August 1, 2019, Mr. Smalley appealed the trial court’s purported 9 denial of his habeas corpus petition. Ex. 61 [ECF No. 30-4, pp. 6–10].
10 * * *
11 On April 16, 2020, the Nevada Supreme Court transferred Mr. Smalley’s appeal to the Nevada Court of Appeals. [Ex. 64, pp. 62–63]. On September 4, 12 2020, the court of appeals entered an order dismissing Mr. Smalley’s appeal based on a jurisdictional defect outside of Mr. Smalley’s control. Ex. 66 [ECF No. 30-4, 13 pp. 78–80]. Specifically, the court found that the trial court never ruled on Mr. Smalley’s denial of counsel claim…. Id. Because the trial court’s “order 14 purportedly denying Smalley’s petition did not resolve all of the claims raised in the petition[,]” it did not constitute a “final order” under Nevada law, and the 15 appellate court thus held that it lacked jurisdiction to consider Mr. Smalley’s appeal. Id. 16 On remand, Mr. Smalley promptly cited the appellate court’s dismissal 17 and moved, within days, for the trial court to resolve all of his claims. Ex. 67 [ECF No. 30-4, pp. 81–89]. 18 As of October 29, 2020, the trial court had taken no further action on 19 Mr. Smalley’s habeas corpus petition, so he filed another motion for reconsideration, again invoking the appellate court’s dismissal order. Ex. 68 20 [ECF No. 30-4, pp. 90–101]; Ex. 69 [ECF No. 30-4, pp. 102–03].
21 In tandem with these proceedings, Mr. Smalley filed a time computation habeas corpus petition—which was distinct from his substantive habeas petition 22 but submitted on the same docket—in which he challenged the state’s calculation of his sentence. Ex. 65 [ECF No. 30-4, pp. 64–77]. Pursuant to Nevada venue 23 law, the trial court (Hon. Joe Hardy, J. [Eighth Judicial District Court]) transferred the time computation petition—and that petition only—to the Seventh Judicial 24 District Court on November 24, 2020. Ex. 70 [ECF No. 30-4, pp. 104–06]. A judge of the Seventh Judicial District (Hon. Gary D. Fairman, J.) rejected the time 25 computation petition on February 5, 2021. Ex. 71 [ECF No. 30-4, pp. 107–10].
26 As of March 29, 2021, the trial court had still taken no additional action on Mr. Smalley’s substantive habeas corpus petition, so Mr. Smalley filed a third 27 motion for relief—this time framed as a motion to address the jurisdictional 1 The same day, the trial court clerk set a hearing date of May 3, 2021 on Mr. Smalley’s motion to address the jurisdictional defect. Ex. 73 [ECF No. 30-4, 2 pp. 130–31]. On April 30, 2021, however, the court (Hon. Erika Ballou, J.) vacated the hearing, ordered the state to file a response by June 14, 2021, and set 3 a new hearing date of June 30, 2021. Ex. 74 [ECF No. 30-4, pp. 132–33].
4 June 14, 2021 came and went, but the state never filed a response as directed. Ex. 77 [ECF No. 30-4, pp. 140–52]. 5 On the scheduled hearing date of June 30, 2021, the trial court filed 6 minutes in which it removed Mr. Smalley’s case from calendar based on an erroneous determination that his substantive habeas petition had been transferred 7 to the Seventh Judicial District Court on November 30, 2020—even though, as noted, only Mr. Smalley’s time computation petition was transferred on 8 November 24. Ex. 75 [ECF No. 30-4, pp. 134–35]; Ex. 70 [ECF No. 30-4, pp. 104–06]. On July 9, 2021, the court followed up with a written order 9 reiterating the same inaccurate conclusion, opining that it lacked jurisdiction over Mr. Smalley’s petition, and (again) vacating the hearing. Ex. 76 [ECF No. 30-4, 10 pp. 136–39]. 11 ECF No. 30, pp. 10–12. 12 A federal court generally may not grant relief on a habeas corpus claim not exhausted in 13 state court. See 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal- 14 state comity, and is designed to give state courts the initial opportunity to correct alleged 15 constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, 16 a petitioner must fairly present that claim to the highest available state court and must give that 17 court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) 18 (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). 19 Smalley did not raise any of his current claims in state court on his direct appeal. 20 Compare ECF No. 30 (amended petition in this action) with ECF No. 33-15 (opening brief on 21 direct appeal). He contends, though, that he raised all his current claims in his state court habeas 22 petition. See ECF No. 39, pp. 7–9. 23 But in his state habeas action, Smalley’s claims have not been presented to any state 24 appellate court in a manner giving the court an opportunity to address and resolve them. Smalley 25 appealed from the denial of his state habeas petition, but that appeal was dismissed, with the 26 Nevada Court of Appeals ruling that it lacked jurisdiction to consider the appeal because the 27 “order purportedly denying Smalley’s petition did not resolve all of the claims raised in the 1 apparently remains pending. The last event in the case in the Eighth Judicial District Court was 2 an order on July 9, 2021, vacating a hearing. See ECF Nos. 30-4, 34-39. 3 Smalley argues that he should be excused from exhausting his claims in state court 4 because the state courts have failed to rule on his state habeas petition, and because it has been 5 over four years since he filed that petition and over three years since the Nevada Court of 6 Appeals returned his case to the state district court. See ECF No. 39, pp. 2–6. Exhaustion of state 7 court remedies may be excused if either one of two conditions is met: “(i) there is an absence of 8 available State corrective process; or (ii) circumstances exist that render such process ineffective 9 to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Courts look to four factors in 10 determining whether delay in a state habeas action satisfies § 2254(b)(1)(B): (1) the length of the 11 delay; (2) the reason for the delay; (3) the petitioner’s assertion of his right; and (4) prejudice to 12 the petitioner. Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990). 13 Smalley has not shown there to be an absence of an available state corrective process, or 14 that further pursuing his state habeas action would be futile. Smalley contends that the Eighth 15 Judicial District Court erred in stating that it had transferred his substantive habeas petition to the 16 Seventh Judicial District Court and in vacating the hearing that was scheduled for June 30, 2021. 17 There is, however, no indication that Smalley has ever made that argument in state court. 18 Smalley did not move for reconsideration of the July 9, 2021 order, and he did not pursue an 19 appeal of any kind regarding that order. Every indication in the state court record, as presented 20 by the parties, is that Smalley’s petition remains pending in the Eighth Judicial District Court. 21 See ECF No. 31 at 2 (the respondents stating as much). Furthermore, while there has been a 22 relatively long delay in the state habeas action (since July 2021), it appears that has resulted in 23 large part because after the July 9, 2021 order issued, Smalley turned his attention to seeking 24 habeas corpus relief in federal court and took no further action in the state court case. I recognize 25 that Smalley has, to this point at least, proceeded pro se in his state habeas action, and I do not, 26 on the record now before me, find that the inactivity in that case has been the result of any 27 intentional or bad-faith delay on Smalley’s part (or on the part of the respondents, for that 1 || matter). However, on the record before me, Smalley has not satisfied § 2254(b)(1)(B). It appears 2 || he has an open state habeas action, in which he may be able to seek relief on his habeas claims. 3 Therefore, Smalley’s amended habeas petition in this case is wholly unexhausted in state 4 || court. I will grant the respondents’ motion to dismiss to the extent that I make that finding. I will 5 || not, however, dismiss this action at this point. Rather, I will give Smalley an opportunity to move 6 || for a stay of this action so that he may return to state court to further pursue his state habeas 7 || action and exhaust his claims. 8 I THEREFORE ORDER that the respondents’ Motion to Dismiss (ECF No. 31) is 9 || GRANTED IN PART. 10 I FURTHER ORDER that Smalley will until January 12, 2024 to file a motion to stay 11 || this action pending exhaustion of his claims in state court. If Smalley does not file such a motion 12 || within the time allowed, I will dismiss this action. 13 I FURTHER ORDER that, under Federal Rule of Civil Procedure 25(d), Ronald Oliver 14 || is substituted for Gabriela Najera as the respondent warden. The Clerk of the Court is directed to 15 || update the docket to reflect this change. 16 DATED THIS 12th day of December, 2023. 17 18 G-— ANDREW P. GORDON 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28