Young v. State of Nevada

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

TERRELL YOUNG, Case No. 3:17-cv-00118-HDM-CBC 5

Petitioner, 6 v. ORDER

7 BACA, et al.,

8 Respondents.

9 This counseled habeas petition pursuant to 28 U.S.C. § 2254 10 comes before the court on respondents’ motion to dismiss the 11 petition as untimely, procedurally defaulted, and unexhausted in 12 part (ECF No. 43). Petitioner has opposed (ECF No. 64), and 13 respondents have replied (ECF No. 65). 14 Petitioner challenges his 2006 state court judgment of 15 conviction, following a jury trial at which he represented himself, 16 of four counts of murder in the first degree with use of a deadly 17 weapon and ten other associated counts, including kidnapping, 18 burglary, robbery, and conspiracy to commit murder. (Ex. 287).1 19 Judgment of conviction was entered on August 3, 2006. (Ex. 310). 20 Because petitioner did not file a direct appeal, his conviction 21 became final thirty days later, on September 5, 2006.2 22 23

24 1 In this order, the court cites primarily to respondents’ set of exhibits, which are located at ECF Nos. 45-56. Where a document is not 25 included in respondents’ set of exhibits, the court cites to petitioner’s set of exhibits, located at ECF Nos. 32-34, as Pet. Ex. 26

27 2 Thirty days after August 3, 2006, fell over the Labor Day weekend, so petitioner had until the next court date -- September 5, 2006 -- to file 28 a notice of appeal. 1 On December 12, 2006, petitioner filed a state postconviction 2 petition, which was dismissed as unverified and not in compliance 3 with the court’s form. (Exs. 318 & 325). Before it was dismissed, 4 petitioner filed a second petition on February 27, 2007. (Ex. 5 324). That petition was denied on December 3, 2007, on the grounds 6 that the claims could have been raised on direct appeal. (Ex. 336). 7 Petitioner did not appeal either order. 8 In August 2008, petitioner filed a “motion to appoint counsel 9 to my direct appeal.” (Ex. 338). The motion was granted on November 10 9, 2008, and Lisa Rasmussen was appointed “for the purpose of 11 filing either a direct appeal or a petition for post-conviction 12 relief, whichever she deems appropriate under the circumstances.” 13 (Ex. 341). 14 For the next five years, virtually nothing happened.3 Then, 15 in March 2014, petitioner filed a motion for appointment of new 16 counsel. (Ex. 343). The court denied the motion. (Ex. 346). 17 Although petitioner attempted to appeal, the appeal was dismissed 18 for lack of jurisdiction. (Exs. 347 & 351). 19 Then, on September 22, 2015, petitioner filed another state 20 postconviction petition for habeas relief. (Pet. Ex. 52). 21 Petitioner proceeded to file several amended petitions and, when 22 those were denied, appeals thereof. (See Exs. 357, 358, 361, 366, 23 24 25 26

27 3 The only event appearing on the record before this court was a request 28 for transcripts filed by Rasmussen in October 2009. (Ex. 342). 1 367, 370, 374, 376, 396, 405, 407, 424, 425, 431, 440, 449, 458). 2 Ultimately, the petitions were denied as untimely, successive, and 3 due to laches. (Exs. 423, 427, 441, 461). 4 On February 14, 2017, petitioner filed his original petition 5 for federal habeas relief. (ECF No. 1-1 at 2). Following the 6 court’s order, he filed an amended petition. The court appointed 7 counsel, who filed a second amended petition. Respondents now move 8 to dismiss the second amended petition as untimely, procedurally 9 defaulted, and unexhausted in part. 10 Timeliness 11 Under 28 U.S.C. § 2244(d)(1)(A), the federal one-year 12 limitation period, unless otherwise tolled or subject to delayed 13 accrual, begins running after “the date on which the judgment 14 became final by the conclusion of direct review or the expiration 15 of the time for seeking such direct review.” The federal 16 limitations period is tolled while “a properly filed application 17 for State post-conviction or other collateral review with respect 18 to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). 19 The petition is untimely on its face because it was filed 20 more than eight years after the expiration of the federal statute 21 of limitations. Between the date petitioner’s conviction became 22 final and the date he initiated timely state postconviction 23

24 4 Although large segments of Exhibit 376 are too dark to be read, this is also true of the document on file with the Nevada Supreme Court, which 25 this court ascertains by taking judicial notice of that court’s docket. See http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=37840 26 (last accessed Oct. 3, 2019). The legibility does not impair the court’s 27 review of the document, however, as the obscured pages appear legibly elsewhere in the record. 28 5 a O mn oe t io of n t bh ye tp he et i St ti ao tn es . t (h Sa et e a Ep xp se .a r 3s 6 3o ,n 3t 8h 9e &r e 3c 9o 7r )d . was stricken following 1 proceedings, nearly three months elapsed. Thus, after proceedings 2 concluded, petitioner had a little more than nine months to file 3 his federal petition. Because petitioner did not appeal the denial 4 of his petitions, postconviction proceedings terminated on the 5 last day to file an appeal, or on January 2, 2008. Absent tolling 6 or other delayed accrual, the statute of limitations expired in 7 October 2008. The instant petition was filed in February 2017, 8 more than eight years after the expiration of the statute of 9 limitations. 10 Petitioner, while conceding the facial untimeliness of the 11 petition, argues that he is entitled to equitable tolling. 12 Petitioner relies principally on his mental health status during 13 the relevant times periods, but also asserts ineffective 14 assistance of, or abandonment by, postconviction counsel. 15 Petitioner requests an evidentiary hearing to the extent the 16 evidence presented in support of equitable tolling is found to be 17 lacking. 18 Having reviewed the pleadings and the relevant record 19 evidence, the court concludes that petitioner’s tolling argument 20 has not been sufficiently developed for a decision to be rendered 21 at this time. The question of whether petitioner’s mental health 22 affected his ability to timely file is complicated. In the 23 interest of judicial economy, the court defers a resolution of the 24 timeliness question until it has had an opportunity to also 25 consider the merits of petitioner’s claims, because if, in the 26 end, the merits are less complicated than the issues of timeliness, 27 the court may elect to simply address the merits instead. See 28 Lambrix v. Singletary, 520 U.S. 518, 525 (1997); Franklin v. 1 Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002); Day v. McDonough, 2 547 U.S. 198, 208–209 (2006). The deferral of this question will 3 also allow petitioner additional time to seek or present whatever 4 evidence necessary to support his claim of equitable tolling, 5 including but not limited to formally requesting an evidentiary 6 hearing by way of a separately filed motion. 7 The motion to dismiss the petition as untimely will therefore 8 be denied without prejudice. 9 Exhaustion 10 Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first 11 must exhaust state court remedies on a claim before presenting 12 that claim to the federal courts. To satisfy this exhaustion 13 requirement, the claim must have been fairly presented to the state 14 courts completely through to the highest state court level of 15 review available. Peterson v. Lampert, 319 F.3d 1153, 1156 (9th 16 Cir. 2003) (en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th 17 Cir. 2003). In the state courts, the petitioner must refer to the 18 specific federal constitutional guarantee and must also state the 19 facts that entitle the petitioner to relief on the federal 20 constitutional claim. Shumway v. Payne, 223 F.3d 983, 987 (9th 21 Cir. 2000). That is, fair presentation requires that the petitioner 22 present the state courts with both the operative facts and the 23 federal legal theory upon which the claim is based. Castillo v. 24 McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion 25 requirement ensures that the state courts, as a matter of federal 26 state comity, will have the first opportunity to pass upon and 27 correct alleged violations of federal constitutional guarantees. 28 See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991). 1 Respondents argue that Ground Two is unexhausted. Following 2 review of all the pleadings petitioner filed in both the state 3 trial court and the Nevada Supreme Court and Court of Appeals, 4 this court agrees. Nowhere has petitioner raised the substance of 5 a claim that either (1) he lacked the capacity to waive his Miranda 6 rights or (2) that he lacked the capacity to decide to represent 7 himself during trial, which is all that Ground Two alleges. 8 Rather, petitioner’s allegations in state court consistently were 9 that he did not waive his Miranda rights, and that the State 10 tampered with the tape recordings of his interviews to suggest 11 otherwise. He also argued, repeatedly, that he wanted to represent 12 himself in trial but that the state court forced him to accept a 13 standby attorney. Neither of these allegations sufficiently raises 14 the substance of the claims in Ground Two. For that reason, the 15 court concludes that Ground Two has not been exhausted. 16 Petitioner argues that even if Ground Two is unexhausted, the 17 court should consider it technically exhausted and procedurally 18 defaulted because he no longer has any state court remedies 19 available to exhaust his claim. 20 A claim may be technically exhausted but procedurally 21 defaulted if “it is clear that the state court would hold the claim 22 procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th 23 Cir. 2002). While it is clear that petitioner would face several 24 procedural bars if he were to return to state court, see, e.g., 25 Nev. Rev. Stat. §§ 34.726 & 34.810, Nevada has cause and prejudice 26 and fundamental miscarriage of justice exceptions to its 27 procedural bars, which are substantially the same as the federal 28 standards. If a petitioner has a potentially viable cause-and- 1 prejudice argument under the substantially similar federal and 2 state standards, then petitioner cannot establish that “it is clear 3 that the state court would hold the claim procedurally barred.” 4 As such, petitioner’s request that the court find Ground Two 5 technically exhausted is denied. Petitioner’s assertions of cause 6 for the default of Ground Two should be presented to the state 7 courts in the first instance. 8 Procedural Default 9 A federal court cannot review even an exhausted claim “if the 10 Nevada Supreme Court denied relief on the basis of ‘independent 11 and adequate state procedural grounds.’” Koerner v. Grigas, 328 12 F.3d 1039, 1046 (9th Cir. 2003). In Coleman v. Thompson, the 13 Supreme Court held that a state prisoner who fails to comply with 14 the state’s procedural requirements in presenting his claims is 15 barred from obtaining a writ of habeas corpus in federal court by 16 the adequate and independent state ground doctrine. 501 U.S. 722, 17 731-32 (1991). A state procedural bar is “adequate” if it is 18 “clear, consistently applied, and well-established at the time of 19 the petitioner’s purported default.” Calderon v. United States 20 District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). A state 21 procedural bar is “independent” if the state court “explicitly 22 invokes the procedural rule as a separate basis for its decision.” 23 Yang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). A state 24 court’s decision is not “independent” if the application of the 25 state’s default rule depends on the consideration of federal law. 26 Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000). 27 Where such a procedural default constitutes an adequate and 28 independent state ground for denial of habeas corpus, the default 1 may be excused only if “a constitutional violation has probably 2 resulted in the conviction of one who is actually innocent,” or if 3 the prisoner demonstrates cause for the default and prejudice 4 resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). 5 To demonstrate cause for a procedural default, the petitioner 6 must “show that some objective factor external to the defense 7 impeded” his efforts to comply with the state procedural rule. 8 Murray, 477 U.S. at 488. For cause to exist, the external 9 impediment must have prevented the petitioner from raising the 10 claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With 11 respect to the prejudice prong, the petitioner bears “the burden 12 of showing not merely that the errors [complained of] constituted 13 a possibility of prejudice, but that they worked to his actual and 14 substantial disadvantage, infecting his entire [proceeding] with 15 errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 16 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 17 170 (1982)). 18 Ground One of the petition is exhausted but procedurally 19 defaulted because petitioner presented it to the state’s highest 20 court for the first and only time on appeals of the dismissal of 21 his untimely and successive petitions. The Nevada Court of Appeals 22 affirmed the denials as successive and untimely under Nev. Rev. 23 Stat. § 34.810 and § 34.726. The Ninth Circuit has held that the 24 Nevada courts’ application of the timeliness rule in § 34.726(1) 25 is an independent and adequate state law ground for procedural 26 default. Moran v. McDaniel, 80 F.3d 1261, 1268–70 (9th Cir. 1996); 27 see also Valerio v. Crawford, 306 F.3d 742, 778 (9th Cir. 2002). 28 The Ninth Circuit also has held that, at least in non-capital 1 cases, Nev. Rev. Stat. § 34.810 is an independent and adequate 2 state ground for procedural default. Vang v. Nevada, 329 F.3d 1069, 3 1074 (9th Cir. 2003); Bargas v. Burns, 179 F.3d 1207, 1210–12 (9th 4 Cir. 1999). The Nevada Court of Appeals’ decision in this case did 5 not depend on the application of federal law in deciding that the 6 claim was procedurally defaulted. Accordingly, the Nevada Court of 7 Appeals relied on independent and adequate state law grounds in 8 affirming the dismissal of the petitions as untimely and 9 successive. 10 Petitioner asserts cause for the default based on (1) his 11 mental illness; and (2) ineffective assistance of postconviction 12 counsel, pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). 13 Taking the second contention first, errors of postconviction 14 counsel cannot establish cause for a procedural default except 15 under the limited circumstances identified in Martinez. See 16 Coleman v. Thompson, 501 U.S. 722, 753–55 (1991); Martinez, 566 17 U.S. at 16-17. In Martinez, the United States Supreme Court created 18 a narrow, equitable rule that allows petitioners to, in some cases, 19 establish cause for a procedural default where the failure to raise 20 a substantial claim of ineffective assistance of trial counsel in 21 initial-review collateral proceedings is due to the absence or 22 ineffective assistance of post-conviction counsel. Martinez 23 provides an exception only for substantial claims of ineffective 24 assistance of trial counsel. It cannot supply cause to excuse the 25 procedural default of a substantive claim of trial court error. 26 See Martinez, 566 U.S. at 16-17. Petitioner’s claim in Ground One 27 is not a claim of ineffective assistance of counsel but is instead 28 1 a substantive claim of trial court error. Martinez therefore cannot 2 excuse his default. 3 Turning to petitioner’s first contention, both parties 4 acknowledge that neither the U.S. Supreme Court nor the Ninth 5 Circuit have found severe mental illness can excuse a procedural 6 default. The Ninth Circuit has held that a “pro se petitioner’s 7 mental condition cannot serve as cause for a procedural default, 8 at least when the petitioner on his own or with assistance remains 9 ‘able to apply for post-conviction relief to a state court.’” 10 Schneider v. McDaniel, 674 F.3d 1144, 1154 (9th Cir. 2012). It 11 further recognized there might be situations in which “a pro se 12 petitioner might demonstrate cause in a situation where a mental 13 condition rendered the petitioner completely unable to comply with 14 a state’s procedures and he had no assistance. But they do prevent 15 us from excusing a procedural default where a mental defect had 16 less of an adverse effect on the petitioner’s ability to comply 17 with state procedures than illiteracy would have had.” Id. 18 Because of the complexity of the fact issue in this case, in 19 particular with respect to petitioner’s mental health during the 20 relevant time periods and as to whether he had assistance during 21 those time periods, the court again concludes that it will defer 22 a final resolution of the matter until after it has had an 23 opportunity to consider the merits of petitioner’s claim and 24 petitioner has had an opportunity to further develop the facts 25 underlying his argument. Accordingly, respondents’ motion to 26 dismiss petitioner’s claims as procedurally defaulted will be 27 denied without prejudice to renew in the answer. 28 1 Options on a Mixed Petition 2 A federal court may not entertain a habeas petition unless 3 the petitioner has exhausted all available and adequate state court 4 remedies for all claims in the petition. Rose v. Lundy, 455 U.S. 5 509, 510 (1982). A “mixed petition” containing both exhausted and 6 unexhausted claims is subject to dismissal. Id. Because 7 petitioner’s petition is mixed, he has three options: 8 1. File a motion to dismiss seeking partial dismissal of only 9 the unexhausted claims; 10 2. File a motion to dismiss the entire petition without 11 prejudice in order to return to state court to exhaust the 12 unexhausted claims; and/or 13 3. File a motion for other appropriate relief, such as a 14 motion for a stay and abeyance asking this court to hold his 15 exhausted claims in abeyance while he returns to state court to 16 exhaust the unexhausted claims. 17 Conclusion 18 In accordance with the foregoing, IT IS HEREBY ORDERED that 19 respondents’ motion to dismiss (ECF No. 43) is GRANTED IN PART and 20 DENIED IN PART WITHOUT PREJUDICE. The motion to dismiss the 21 petition as untimely and procedurally defaulted is DENIED WITHOUT 22 PREJUDICE to reassert in the answer to the petition. The motion 23 to dismiss Ground Two as unexhausted is GRANTED. 24 IT IS FURTHER ORDERED that petitioner’s requests for an 25 evidentiary hearing and discovery, embedded in his opposition, are 26 DENIED WITHOUT PREJUDICE to renew in separately filed motions at 27 the time of filing his reply to the answer. 28 1 IT IS FURTHER ORDERED that petitioner shall have twenty (20) 2\| days from entry of this order within which to file either: (1) a 3]| motion to dismiss seeking partial dismissal only of the unexhausted claims; (2) a motion to dismiss the entire petition without prejudice in order to return to state court to exhaust the 6]| unexhausted claims; and/or (3) other appropriate relief, such as 7\| a motion for a stay and abeyance asking this court to hold his 8|| exhausted and/or procedurally defaulted claims in abeyance while he returns to state court to exhaust his unexhausted claims. 10 The entire petition will be dismissed without prejudice for lack of complete exhaustion if a motion as provided for herein is 12|| not timely mailed for filing. 13 IT IS SO ORDERED. 14 DATED: This 15th day of October, 2019. 15 16 bral” D tt 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28