Christian Doran Walker VS Jackie Crawford, et al.,, No. 2:2004cv00929 - Document 105 (D. Nev. 2020)
Court Description: ORDER denying 96 Motion for Relief from Judgment, 97 Motion for Appointment of Counsel, and 98 Motion to for Leave to Amend. A Certificate of Appealability shall not issue. Signed by Judge Kent J. Dawson on 9/2/2020. (Copies have been distributed pursuant to the NEF with hard copy mailed to P - DRS)
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Christian Doran Walker VS Jackie Crawford, et al., Doc. 105 Case 2:04-cv-00929-KJD-PAL Document 105 Filed 09/02/20 Page 1 of 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CHRISTIAN D. WALKER, 12 Petitioner, 13 14 Case No. 2:04-cv-00929-KJD-PAL ORDER v. E.K. MCDANIEL, et al., 15 Respondents. 16 17 18 I. Introduction This is a closed habeas corpus action under 28 U.S.C. § 2254. Petitioner, Christian 19 Walker, has filed a proper-person document that the clerk of the court has docketed as three 20 motions. First is a motion for relief from the judgment under Rule 60(b) of the Federal Rules of 21 Civil Procedure. ECF No. 96. Respondents oppose the motion. ECF No. 101. Second is a 22 motion for appointment of counsel. ECF No. 97. Respondents oppose the motion. ECF No. 102. 23 Third is a motion for leave to file an amended petition. ECF No. 98. Respondents oppose the 24 motion. ECF No. 103. Walker has filed a combined reply. ECF No. 104. The court finds that 25 Walker has not demonstrated that he is entitled to relief from the judgment, and the court denies 26 the Rule 60(b) motion. The denials of the other two motions necessarily follow. 27 28 1 Dockets.Justia.com Case 2:04-cv-00929-KJD-PAL Document 105 Filed 09/02/20 Page 2 of 7 1 II. Procedural History 2 A. State-court proceedings 3 Timeliness of this action under the one-year limit of 28 U.S.C. § 2244(d)(1) always has 4 been the issue. Walker was convicted in state district court of attempted murder with the use of a 5 deadly weapon. Ex. 85 (ECF No. 60-19) (amended judgment). He appealed, and the Nevada 6 Supreme Court dismissed the appeal on June 21, 1999. Ex. 87 (ECF No. 60-21). The time to 7 petition the Supreme Court of the United States for a writ of certiorari expired on September 20, 8 1999. Sup. Ct. R. 13(1). For the purposes of 28 U.S.C. § 2244(d)(1)(A), his judgment of 9 conviction became final that day. 10 Walker argued that he did not know about the conclusion of his direct appeal until much 11 later. In its order of March 21, 2005, the court determined that the latest that Walker could have 12 learned of the conclusion of the direct appeal was August 13, 2001, when the state district court 13 appointed counsel to represent Walker in post-conviction proceedings. ECF No. 20 at 3. Under 14 28 U.S.C. § 2244(d)(1)(D), the one-year period of limitation would have started the next day, 15 August 14, 2001. 16 A properly filed state post-conviction habeas corpus petition tolls the one-year limit. 28 17 U.S.C. § 2244(d)(2). However, Walker had nothing pending in state court for the next year. The 18 federal one-year limit of § 2244(d)(1) expired at the end of August 13, 2002. 19 Walker filed a counseled first post-conviction habeas corpus petition in the state district 20 court on July 14, 2003. Ex. 93 (ECF No. 60-27). The state district court denied the petition as 21 untimely under Nev. Rev. Stat. § 34.726(1) on October 6, 2003. Ex. 97 (ECF No. 60-31). 22 Walker appealed, and the Nevada Supreme Court affirmed on March 5, 2004. Ex. 108 (ECF No. 23 60-42). Remittitur issued on March 30, 2004. Ex. 109 (ECF No. 60-43). 24 25 26 The first state petition did not toll the federal one-year limit under § 2244(d)(2) because that limit already had expired. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). On November 7, 2007, Walker filed a second post-conviction habeas corpus petition in 27 the state district court. Ex. 110 (ECF No. 60-44). The state district court denied the petition on 28 its merits. Ex. 127 (ECF No. 61-2). Walker appealed. The Nevada Supreme Court reversed and 2 Case 2:04-cv-00929-KJD-PAL Document 105 Filed 09/02/20 Page 3 of 7 1 remanded because the state district court had not considered whether the petition was 2 procedurally defaulted. Ex. 138 (ECF No. 61-13). The state district court then determined that 3 the petition was procedurally defaulted. Ex. 150 (ECF No. 61-25). Walker appealed. On July 4 15, 2010, the Nevada Supreme Court concluded that the petition was untimely under Nev. Rev. 5 Stat. § 34.726(1), successive for claims already raised under Nev. Rev. Stat. § 34.810(1)(b), 6 abusive of the writ for claims raised for the first time under Nev. Rev. Stat. § 34.810(2), and 7 barred by laches under Nev. Rev. Stat. § 34.800. Ex. 168 at 1-2 (ECF No. 61-43 at 2-3). The 8 Nevada Supreme Court also concluded that Walker had not shown either good cause or actual 9 innocence to excuse the procedural default. Id. at 2-4 (ECF No. 61-43 at 3-5). Remittitur issued 10 on August 10, 2010. Ex. 169 (ECF No. 61-44). 11 12 The second state petition did not toll the federal one-year limit under § 2244(d)(2) because that limit already had expired. Ferguson, 321 F.3d at 823. 13 B. Federal-court proceedings 14 On July 2, 2004, before Walker filed his second state petition, this court received his 15 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 8. On March 21, 16 2005, the court dismissed the petition as untimely. ECF No. 20. The court held that equitable 17 tolling was not available for post-conviction counsel's failure to take the federal one-year limit 18 into account. Id. at 3 (citing Miranda v. Castro, 292 F.3d 1063, 1066-68 (9th Cir. 2002); Frye v. 19 Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)). After the court issued this decision, the Supreme 20 Court confirmed the Ninth Circuit's rulings. The Court held, "Attorney miscalculation is simply 21 not sufficient to warrant equitable tolling, particularly in the postconviction context where 22 prisoners have no constitutional right to counsel." Lawrence v. Florida, 549 U.S. 327, 336-37 23 (2007). The court also rejected Walker's argument that he was actually innocent. ECF No. 20 at 24 4-5. 25 Walker appealed. The Ninth Circuit affirmed this court's ruling on no equitable tolling 26 due to post-conviction counsel's miscalculation. ECF No. 41 at 2-3. The Ninth Circuit vacated 27 this court's ruling on actual innocence and remanded for an evidentiary hearing on that issue. Id. 28 at 3-6. 3 Case 2:04-cv-00929-KJD-PAL Document 105 Filed 09/02/20 Page 4 of 7 1 This court held an evidentiary hearing. After the hearing, the court ruled that Walker had 2 not demonstrated actual innocence. ECF No. 80. Walker appealed. The Ninth Circuit affirmed 3 this court's decision. ECF No. 89. The Ninth Circuit then denied Walker's petition for rehearing 4 and rejected his suggestion for rehearing en banc. ECF No. 90. Walker then petitioned the 5 Supreme Court of the United States for a writ of certiorari. ECF No. 94. The Supreme Court 6 denied that petition on October 1, 2018. ECF No. 95. 7 8 Walker filed the three motions currently at issue on December 5, 2019. III. 9 10 Legal Standard A Rule 60(b)(6) motion requires extraordinary circumstances, which rarely will occur in the context of habeas corpus. Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). 11 Walker bases his argument upon an incorrect belief that this court dismissed this action as 12 procedurally defaulted, and then upon two Supreme Court cases that outlined how a person can 13 gain relief from procedural default. 14 A federal court will not review a claim for habeas corpus relief if the decision of the state 15 court regarding that claim rested on a state-law ground that is independent of the federal question 16 and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 17 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 18 19 20 21 Id. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). This is known as a procedural 22 default. 23 Coleman also held that the ineffective assistance of post-conviction counsel is not cause to 24 excuse the procedural default of a claim. 501 U.S. at 752-53. Coleman left open the question of 25 whether ineffective assistance of state post-conviction counsel could be good cause to excuse a 26 procedural default of a claim of ineffective assistance of trial counsel, when state law requires a 27 person to raise such a claim in state post-conviction proceedings and not on direct appeal. Id. at 28 755. 4 Case 2:04-cv-00929-KJD-PAL Document 105 Filed 09/02/20 Page 5 of 7 1 The Supreme Court answered that question in Martinez v. Ryan, 566 U.S. 1 (2012). It 2 held that when state law requires a person to raise a claim of ineffective assistance of trial counsel 3 in post-conviction proceedings, the person can establish good cause to excuse the procedural 4 default of such a claim by showing (1) either the absence of counsel in initial state post- 5 conviction proceedings or the ineffective assistance of counsel in initial state post-conviction 6 proceedings and (2) that the claim of ineffective assistance of trial counsel is substantial. Id. at 7 14. The Supreme Court then extended Martinez to states in which, as a practical matter, a 8 petitioner will need to raise a claim of ineffective assistance of trial counsel in post-conviction 9 proceedings. Trevino v. Thaler, 569 U.S. 413 (2013). The Supreme Court later reinforced that 10 Martinez applies only to procedurally defaulted claims of ineffective assistance of trial counsel, 11 and not to other claims. Davila v. Davis, 137 S. Ct. 2058 (2017). 12 Buck v. Davis, 137 S. Ct. 759 (2017), involved a Rule 60(b)(6) motion to gain relief from 13 a judgment to present a Martinez argument. To summarize briefly, in Texas state court Buck was 14 convicted of murder and sentenced to death. Id. at 769. Texas, as a practical matter, required 15 Buck to raise his claims of ineffective assistance of trial counsel in state post-conviction 16 proceedings. Id. at 771. Buck had a substantial claim of ineffective assistance of trial counsel. 17 In the initial state post-conviction proceedings, Buck did not raise that claim. Id. at 769. In a 18 subsequent state post-conviction proceeding, Buck tried to raise the claim, but the state court 19 ruled that it was barred because he could have raised it in the initial proceeding. Id. at 770. In 20 § 2254 habeas corpus proceedings, the federal court ruled that the claim was procedurally 21 defaulted. Id. at 770-71. Then the Supreme Court decided Martinez and Trevino. Id. at 771. 22 Buck filed a Rule 60(b)(6) motion, which the federal district court denied. Id. at 771-72. The 23 court of appeals denied a certificate of appealability. Id. at 772-73. The Supreme Court held that 24 extraordinary circumstances existed to grant relief and that the respondents had waived any 25 argument that Martinez and Trevino did not apply retroactively. Id. at 778-80. 26 IV. 27 28 Discussion Turning to this case, the court finds that extraordinary circumstances do not exist. Walker's argument is flawed from the start. Respondents did not move to dismiss the action 5 Case 2:04-cv-00929-KJD-PAL Document 105 Filed 09/02/20 Page 6 of 7 1 because it was procedurally defaulted, but because it was untimely under 28 U.S.C. § 2244(d)(1). 2 ECF No. 11. The court agreed. No procedural default occurred in this case. The court did not 3 dismiss the action because a state-law reason, adequate and independent of federal law, barred 4 relief in the state courts. The court dismissed this action because the action was untimely under 5 28 U.S.C. § 2244(d)(1), a federal statute. ECF No. 20. 6 Walker tries to apply Martinez where it is inapplicable. Martinez applies only when the 7 ineffective assistance of state post-conviction counsel, or the absence of that counsel, caused the 8 procedural default of a substantial claim of ineffective assistance of trial counsel. 566 U.S. at 14. 9 First, Walker argues that this petition was untimely because of the ineffective assistance of state 10 post-conviction counsel. However, Martinez does not apply to untimely federal habeas corpus 11 petitions. Second, Walker then argues that his federal habeas corpus counsel provided ineffective 12 assistance because that counsel did not argue the ineffective assistance of state post-conviction 13 counsel. However, Martinez does not apply to arguments that federal habeas corpus counsel 14 provided ineffective assistance. Martinez simply has no applicability to the reasons why this 15 court dismissed this action. 16 Buck v. Davis, which Walker argues vigorously to support his motion, also becomes 17 inapplicable. This case had no procedural default of a substantial claim of ineffective assistance 18 of trial counsel, which meant that Martinez is inapplicable. The extraordinary circumstances that 19 justified relief from the judgment under Rule 60(b)(6) in Buck do not exist in this case. 20 What remains are Walker's arguments for equitable tolling that the court rejected and that 21 the court of appeals affirmed. The court decided that equitable tolling was not available for state 22 post-conviction counsel's failure to take the federal filing deadline into account. ECF No. 20 at 3. 23 Subsequently, the Supreme Court held that attorney miscalculation of a filing deadline is not a 24 good reason for equitable tolling, thus confirming this court's decision. Lawrence, 549 U.S. at 25 336-37. The court also decided that Walker had not demonstrated actual innocence. ECF No. 80. 26 Walker does not make any argument regarding that decision. Consequently, no extraordinary 27 circumstances exist to give Walker relief from the judgment. The court denies Walker's Rule 28 60(b)(6) motion. 6 Case 2:04-cv-00929-KJD-PAL Document 105 Filed 09/02/20 Page 7 of 7 1 2 Reasonable jurists would not find this decision to be debatable or wrong, and the court will not issue a certificate of appealability. 3 Respondents have argued that the motion is untimely under Rule 60(c)(1), which requires 4 a person to file a Rule 60(b)(6) motion within a reasonable time. The court will not address that 5 argument because the motion's lack of merit was clear. 6 With the denial of the Rule 60(b)(6) motion, the court necessarily denies Walker's other 7 two motions. Because the court is not reopening the action, the court will neither appoint new 8 counsel to represent Walker nor grant him leave to file an amended petition. 9 V. 10 11 12 13 14 15 Conclusion IT THEREFORE IS ORDERED that petitioner's motion for relief from the judgment (ECF No. 96) is DENIED. IT FURTHER IS ORDERED that petitioner's motion for appointment of counsel (ECF No. 97) is DENIED. IT FURTHER IS ORDERED that petitioner's motion for leave to file an amended petition (ECF No. 98) is DENIED. 16 IT FURTHER IS ORDERED that a certificate of appealability will not issue. 17 DATED: September 1, 2020 18 ______________________________ KENT J. DAWSON United States District Judge 19 20 21 22 23 24 25 26 27 28 7
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