Yohey v. Russell

• Court: District Court, D. Nevada
• Decided: March 24, 2023
• Docket: 3:20-cv-00441
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 SLATER L. YOHEY, Case No. 3:20-cv-00441-ART-CLB 5 Petitioner, ORDER 6 v.

7 PERRY RUSSELL, et al.,

8 Respondents.

9 I. SUMMARY 10 This counseled habeas petition comes before the Court on Respondents’ 11 motion to dismiss. (ECF No. 51 (“Motion”).) Petitioner Slater L. Yohey (“Petitioner” 12 or “Yohey”) opposed the Motion, and Respondents replied. (ECF Nos. 55, 62.) For 13 the reasons stated below, the Court grants the motion to dismiss, in part, and 14 denies it, in part. 15 II. BACKGROUND 16 Yohey challenges his 2016 state court conviction, pursuant to a guilty plea, 17 of two counts of robbery with the use of a deadly weapon, kidnapping in the first 18 degree, grand larceny of a motor vehicle, and eluding a police officer. (ECF No. 19 17-12.) Yohey was sentenced to an aggregate term of 15 to 53 years in prison. 20 (Id.) Yohey filed two pro se notices of appeal, but the Nevada Supreme Court 21 dismissed the appeals as untimely. (ECF No. 17-16.) Yohey filed a state petition 22 for post-conviction relief. (ECF No. 17-21.) The state district court denied Yohey’s 23 petition, and the Nevada Supreme Court affirmed the denial. (ECF Nos. 17-34, 24 17-41.) 25 Yohey filed a pro se federal petition for a writ of habeas corpus. (ECF No. 26 1-1.) This Court appointed counsel, and Yohey filed a counseled first amended 27 petition and a counseled second amended petition. (ECF Nos. 6, 11, 16, 24.) 28 1 Respondents moved to dismiss the second amended petition. (ECF No. 34.) Yohey 2 moved to strike the motion to dismiss or, in the alternative, moved for a more 3 definite statement relating to Respondents’ timeliness and relation back 4 arguments. (ECF No. 40.) In their response to the motion to strike, Respondents 5 agreed to submit a renewed motion to dismiss. (ECF No. 50.) This Court granted 6 the motion to strike. (ECF No. 52.) In their renewed motion to dismiss, 7 Respondents argue that Ground 4 is procedurally barred and Grounds 1 and 2 8 are unexhausted. (ECF No. 51.) 9 III. DISCUSSION 10 A. Procedural default of Ground 4 11 1. Legal standard 12 Federal courts are barred from considering a state prisoner’s habeas claim 13 if the state courts denied his claim pursuant to an independent and adequate 14 state procedural rule. Edwards v. Carpenter, 529 U.S. 446, 454–55 (2000). When 15 a prisoner “procedurally defaults” a federal claim, judicial review is barred unless 16 he can show either: (1) “cause for the default and actual prejudice as a result of 17 the alleged violation of federal law,” or (2) “that failure to consider the claims will 18 result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 19 722, 750 (1991). To demonstrate cause, a petitioner must show that some 20 external and objective factor impeded his efforts to comply with the state’s 21 procedural rule. Maples v. Thomas, 565 U.S. 266, 280–81 (2012). Ignorance or 22 inadvertence does not constitute cause. Murray v. Carrier, 477 U.S. 478, 486–87 23 (1986). The Supreme Court has acknowledged that in certain circumstances 24 counsel's ineffectiveness in failing properly to preserve a claim for review in state 25 court will suffice as “cause.” See Edwards. 529 U.S. at 451 (citing Carrier, 477 26 U.S., at 488–489). To constitute “cause,” counsel's performance must have been 27 so ineffective as to violate the Federal Constitution. Id. To show prejudice, a 28 petitioner bears the burden of showing not merely that the error created a 1 possibility of prejudice, but that the error worked to his actual and substantial 2 disadvantage, infecting the entire proceeding with constitutional error. Id. at 494; 3 Bradford v. Davis, 923 F.3d 599, 613 (9th Cir. 2019). 4 2. Analysis 5 Yohey acknowledges that Ground 4 is procedurally defaulted but argues 6 that he can show cause and prejudice to overcome the default based on his claim 7 that counsel was ineffective in failing to file a direct appeal despite his request. 8 (ECF No. 55 at 9–10.) 9 In Ground 4, Yohey alleges that his due process rights under the Fifth and 10 Fourteenth Amendments were violated when the sentencing court failed to 11 consider the factors under NRS 193.165 on the record as required under Nevada 12 state law. (ECF No. 24 at 12.) Yohey included this claim in his state petition for 13 post-conviction relief, and the state district court denied it on the merits because 14 “the Court carefully considered the factors outlined in NRS 193.165.” (ECF No. 15 17-34.) In affirming the denial of Yohey’s state petition for post-conviction relief, 16 the Nevada Supreme Court found that “[t]his claim fell outside the scope of claims 17 permissible in a postconviction petition for a writ of habeas corpus challenging a 18 judgment of conviction based upon a guilty plea. NRS 34.810(1)(a).” (ECF No. 17- 19 41 at 3–4.) Consequently, because Ground 4 was denied by the Nevada Supreme 20 Court on adequate and independent state procedural grounds, the procedural 21 default doctrine applies here. See Vang v. Nevada, 329 F.3d 1069, 1073–75 (9th 22 Cir. 2003). 23 Yohey argues that he can overcome the default of Ground 4 due to his 24 counsel’s failure to file a notice of appeal. For ineffective assistance of counsel to 25 function as cause to excuse a procedural default, the claim of ineffective 26 assistance of counsel must be exhausted before the state courts as an 27 independent claim. See Edwards, 529 U.S. at 453 (“‘[A] claim of ineffective 28 assistance,’ we said, generally must ‘be presented to the state courts as an 1 independent claim before it may be used to establish cause for a procedural 2 default.’” (citing Murray, 477 U.S. at 489). 3 In ground 1 of his state petition for post-conviction relief (which mirrors 4 Ground 3 of his operative federal amended petition), Yohey argued that “counsel 5 failed to file a timely notice of appeal from [his] judgment of conviction.” (ECF 17- 6 21 at 15-16.) Yohey alleged that he told his counsel after sentencing that he 7 wished to appeal, followed up with a written communication to his counsel from 8 prison, and received a letter from counsel telling him that he did not file a notice 9 of appeal, at which point he filed a pro se notice of appeal. (Id. at 15-16.) Yohey 10 alleged that he told counsel that he wanted to appeal his judgment of conviction 11 to address “Constitutional issues” and several sentencing issues, including 12 “Abuse of Discretion at Sentencing; Restitution Errors,” “Enhancement Penalty 13 Errors,” and “Redundancy Issues in the Multiple Sentences.” (Id. at 15). 14 At the evidentiary hearing, the state district court considered the 15 correspondence regarding Yohey’s desire to appeal. (See ECF No. 17-33 at 26, 16 40.) Yohey provided the letter he sent to his counsel, Mr. Petty, in which he asked 17 about appealing his sentence. (ECF No. 17-31 at 6.) Although Yohey’s letter to 18 his counsel is illegible, his interest in appealing is apparent from the email Mr. 19 Petty sent to co-counsel, Mr. Fortier, in which Mr. Petty relayed that Yohey asked 20 about possible sentencing issues for appeal, concluding, “In sum, do you believe 21 issues exist for appeal?” (Id. at 9.) Mr. Fortier responded that there were no issues 22 to appeal, and that Yohey had not asked him to appeal. (Id.) Mr. Petty then replied 23 to Yohey telling him, after discussing various sentencing concerns, “Thus there 24 are no issues here for appeal and I cannot help you.” (Id. at 4.) As Yohey alleged 25 in his state petition for post-conviction relief, he received Mr. Petty’s letter after 26 the expiration of the thirty-day deadline for filing a notice of appeal. See 27 Judgment, dated June 9, 2016 (ECF No. 17-12); Letter from Mr. Petty, dated July 28 6, 2016 (ECF No. 17-31 at 4); Petition for Writ of Habeas Corpus (ECF 17-21 at 1 15) (alleging that Mr. Petty’s July 6 letter was post-marked July 12, 2016, and 2 received by Yohey on July 18, 2016). 3 The district court denied ground 1 on the merits, crediting Mr. Petty and 4 Mr. Fortier’s testimony that no direct appeal was filed due to Yohey’s “failure to 5 request one.” (ECF 17-34 at 7.) The state district court further found that Yohey 6 could not show prejudice because he had “not identified any meritorious claims 7 for appeal.” (Id. ) 8 In his appeal to the Nevada Supreme Court, Yohey argued that the state 9 district court erred in finding that his counsel was not ineffective “for failing to 10 effectuate an appeal.” (ECF No. 17-38 at 14.) In arguing prejudice from his 11 counsel’s failure to effectuate an appeal, Yohey explicitly argued that his counsel 12 could have raised the claim alleged in Ground 4—that the state district court 13 violated due process by failing to consider the NRS 193.165 factors at his 14 sentencing hearing—if counsel had effectuated an appeal. (Id. at 17.) Yohey 15 explained that his counsel was deficient under Strickland in failing to perfect an 16 appeal and he was prejudiced by that failure because counsel could have raised 17 Ground 4 on direct appeal. (Id.) In other words, but for counsel’s ineffectiveness, 18 Yohey would not have defaulted Ground 4. 19 To overcome procedural default, a petitioner must show that his ineffective 20 assistance of counsel claim was “presented to the state courts as an independent 21 claim” and is meritorious, i.e., showing that counsel was “so ineffective as to 22 violate the Federal Constitution.” Edwards, 529 U.S. at 451. The court finds that 23 Yohey sufficiently presented in state court his claim that Ground 4 was 24 procedurally defaulted due to ineffective assistance of counsel in failing to raise 25 Ground 4 on direct appeal. As to the merits of that ineffective assistance claim, 26 the alleged ineffectiveness involved the same conduct alleged in Ground 3 of his 27 federal amended petition. In Visciotti v. Martel, 862 F.3d 749, 768-769 (9th Cir. 28 2016), the court held that a court may consider de novo whether a claim of 1 ineffective assistance of counsel constitutes cause and prejudice to excuse 2 procedural default. Id. at 769 (observing that courts apply a “differing standard 3 for evaluating constitutional error as a substantive basis of relief and as a cause 4 to avoid default of other claims”). In other words, a claim of ineffective assistance 5 based on failure to file a notice of appeal could suffice to overcome procedural 6 default (based on a de novo standard of review) but the same conduct may or may 7 not entitle the petitioner to habeas relief under AEDPA. While the Court could 8 consider the merits of Ground 3 as a basis for overcoming procedural default, the 9 factual and legal basis for that claim have not been fully briefed. The Court 10 therefore defers until the merits stage a decision on whether the ineffective 11 assistance alleged in Ground 3 constitutes cause to overcome the procedural 12 default of Ground 4 based on a de novo standard of review per Visciotti and, if so, 13 whether is it grounds for habeas relief under 28 U.S.C. 2254(d). 14 B. Exhaustion of Grounds 1 and 2 15 Respondents argue that Grounds 1 and 2 are unexhausted. (ECF No. 51 at 16 7.) In Ground 1, Yohey alleges that his counsel failed to investigate or present 17 mitigation at his sentencing in violation of the Fifth, Sixth, and Fourteenth 18 Amendments. (ECF No. 24 at 5.) And in Ground 2, Yohey alleges that his counsel 19 failed to object during sentencing to the state district court’s failure to consider 20 all of the factors under NRS 193.165 on the record as required under Nevada 21 state law in violation of the Fifth, Sixth, and Fourteenth Amendments. (Id. at 7.) 22 1. Legal standard 23 A state prisoner first must exhaust state court remedies on a habeas claim 24 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This 25 exhaustion requirement ensures that the state courts, as a matter of comity, will 26 have the first opportunity to address and correct alleged violations of federal 27 constitutional guarantees. Coleman, 501 U.S. at 730–31. “A petitioner has 28 exhausted his federal claims when he has fully and fairly presented them to the 1 state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing 2 O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 2254(c) requires 3 only that state prisoners give state courts a fair opportunity to act on their 4 claims.”)). To satisfy the exhaustion requirement, a claim must have been raised 5 through one complete round of either direct appeal or collateral proceedings to 6 the highest state court level of review available. O’Sullivan, 526 U.S. at 844–45; 7 Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc). A properly 8 exhausted claim “‘must include reference to a specific federal constitutional 9 guarantee, as well as a statement of the facts that entitle the petitioner to 10 relief.’” Woods, 764 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162– 11 63 (1996)); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair 12 presentation requires both the operative facts and federal legal theory upon which 13 a claim is based). 14 2. Analysis 15 Yohey admits that Grounds 1 and 2 have not been exhausted, but he 16 argues that (1) they are technically exhausted and procedurally defaulted, and 17 (2) he can overcome the procedural default pursuant to Martinez v. Ryan. (ECF 18 No. 55 at 4.) 19 A claim may be considered procedurally defaulted if “it is clear that the 20 state court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 21 F.3d 371, 376 (9th Cir. 2002). Yohey would face several procedural bars if he 22 were to return to state court. See, e.g., Nev. Rev. Stat. §§ 34.726 & 34.810. Nevada 23 has cause and prejudice and fundamental miscarriage of justice exceptions to its 24 procedural bars, which are substantially the same as the federal standards. If a 25 petitioner has a potentially viable cause-and-prejudice or actual-innocence 26 argument under the substantially similar federal and state standards, then 27 petitioner cannot establish that “it is clear that the state court would hold the 28 claim procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, the 1 courts in this district have generally declined to find a claim subject to 2 anticipatory procedural default unless the petitioner represents that he would be 3 unable to establish cause and prejudice in a return to state court. In such a case, 4 the claim would generally be subject to immediate dismissal as procedurally 5 defaulted, as the petitioner would have conceded that he has no grounds for 6 exception to the procedural default in federal court. 7 A different situation is presented, however, where the Nevada state courts 8 do not recognize a potential basis to overcome the procedural default arising from 9 the violation of a state procedural rule that is recognized under federal law. In 10 Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court held that the absence or 11 inadequate assistance of counsel in an initial-review collateral proceeding may 12 be relied upon to establish cause excusing the procedural default of a claim of 13 ineffective assistance of trial counsel. Id. at 9. The Nevada Supreme Court does 14 not recognize Martinez as cause to overcome a state procedural bar under Nevada 15 state law. Brown v. McDaniel, 331 P.3d 867, 875 (Nev. 2014). Thus, a Nevada 16 habeas petitioner who relies upon Martinez—and only Martinez—as a basis for 17 overcoming a state procedural bar on an unexhausted claim can successfully 18 argue that the state courts would hold the claim procedurally barred but that he 19 nonetheless has a potentially viable cause-and-prejudice argument under federal 20 law that would not be recognized by the state courts when applying the state 21 procedural bars. 22 Here, Yohey advances only Martinez as a basis for excusing the anticipatory 23 default of Grounds 1 and 2. (See ECF No. 55 at 4 n.4.) Accordingly, the Court 24 grants Yohey’s request to consider Grounds 1 and 2 technically 25 exhausted. Because the cause-and-prejudice questions of Grounds 1 and 2 are 26 necessarily connected to the merits of Grounds 1 and 2, the Court will defer a 27 determination until the time of merits determination. Accordingly, the motion to 28 dismiss Grounds 1 and 2 as exhausted, or alternatively procedurally defaulted, 1 || is denied without prejudice. Respondents may renew the procedural default 2 || argument in their answer. 3 || V. CONCLUSION 4 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 51) is 5 || granted as follows: (1) Ground 4 is procedurally defaulted, and (2) Grounds 1 and 6 || 2 are technically exhausted, but procedurally defaulted. 7 It is further ordered that the Court defers consideration until after the filing 8 || of an answer and reply in this action of (1) whether Yohey can demonstrate the 9 || ineffective assistance of counsel alleged in Ground 3 to demonstrate cause to 10 || overcome the procedural default of Ground 4 and (2) whether Yohey can 11 || demonstrate cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012) to 12 || overcome the procedural default of Grounds 1 and 2. 13 It is further ordered that Respondents must file an answer to the second 14 || amended petition within 60 days of the date of this order. Yohey will have 60 days 15 || from service of the answer within which to file a reply. 16 17 DATED THIS 24th day of March 2023. 18 19 an 20 An os Poel? 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28