ANTONIO LAVON DOYLE V. Timothy Filson, ET AL., No. 3:2000cv00101 - Document 301 (D. Nev. 2018)

Court Description: ORDER granting in part and denying in part ECF No. 277 Motion to Dismiss; denying ECF Nos. 286 Motion for discovery and 287 Motion for evidentiary hearing; Respondents' answer due 8/21/2017; in all other respects, the schedule for further proceeding in ECF No. 258 shall remain in effect. Signed by Judge Robert C. Jones on 5/23/2018. (Copies have been distributed pursuant to the NEF - KW)

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ANTONIO LAVON DOYLE V. Timothy Filson, ET AL. Doc. 301 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 ANTONIO LAVON DOYLE, Case No. 3:00-cv-00101-RCJ-WGC Petitioner, ORDER v. 12 13 TIMOTHY FILSON, et al., Respondents. 14 15 16 Introduction 17 This action is a petition for writ of habeas corpus by Antonio Lavon Doyle, a 18 Nevada prisoner sentenced to death. The case is before the Court with respect to a 19 motion to dismiss filed by the respondents. In that motion, respondents assert that various 20 claims in Doyle’s second amended habeas petition are barred by the statute of limitations, 21 unexhausted in state court, procedurally defaulted, and not cognizable in this federal 22 habeas corpus action. Doyle has, in turn, filed a motion for leave to conduct discovery 23 and a motion for an evidentiary hearing. All three motions are fully briefed. The Court will 24 grant the motion to dismiss in part and deny it in part, will deny Doyle’s motion for leave 25 to conduct discovery and his motion for evidentiary hearing, and will set a schedule for 26 respondents to file an answer. 27 28 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Background In its opinion on Doyle’s direct appeal, the Nevada Supreme Court described the factual background of this case as follows: On January 16, 1994, the nude body of twenty-year-old Ebony Mason was discovered some twenty-five feet off the roadway in an unimproved desert area of Clark County, Nevada. The woman’s body was found lying face down with hands extended overhead to a point on the ground where it appeared some digging had occurred. A four-inch twig protruded from the victim’s rectum. Three distinct types of footwear impressions were observed in the area, none of which matched the tread design of a pair of women’s athletic shows located on the nearby dirt road. Also observed in the area was a hole containing a broken condom, a condom tip, an open but empty condom package and two small packages of taco sauce. In the opinion of the medical examiner, Mason died from asphyxia due to strangulation or blunt trauma to the head. The autopsy revealed nine broken ribs, multiple areas of external bruising, contusions, lacerations, abrasions, and a ligature mark on the anterior surface of the neck. Approximately 200 milliliters of fluid blood was found in Mason’s chest cavity. Mason’s back and chest bore a number patterned contusions consistent with footwear impressions found at the crime scene. Finally, the autopsy revealed severe laceration of the head and subarachnoid hemorrhage (a thin layer of blood surrounding the brain) indicating blunt force trauma to the skull. Laboratory analysis revealed traces of the drug PCP in Mason’s system. Michael Smith, who had been arrested in an unrelated matter, provided the police with the names of those he believed were responsible for the murder. Smith recounted statements made by Doyle regarding a killing to which Doyle claimed to have been a party. According to Smith, he and Doyle had overheard a girl tell some other people about her friend having been killed. At that time, Doyle commented to Smith that “we had to take someone out.” Doyle further stated that he, Darrin Anderson, Shawn Atkins, and “Bubba” Atkins were at Anderson’s house with a girl and that each had sex with the girl. While they were taking the girl home, she told the men that she was going to report them for rape and jumped from the truck in which they were riding. They were eventually able to coax the girl back into the truck and decided to kill her rather than face possible rape charges. The girl was apparently so inebriated or under the influence of drugs that she was oblivious to the direction the men were travelling. When they arrived at a remote area, the girl was pulled from the truck and choked. Unsuccessful in their attempt to choke her4 to death, the men then beat the girl. Finally, Doyle told Smith, two of the men held the girl down while the other repeatedly dropped a brick on her face until she died. With information obtained from Smith, the police contacted Darrin Anderson, the owner of a small, yellow pickup truck. According to Anderson, on the night of January 15, 1994, he was present with Doyle at the home of Shawn and “Bubba” Atkins. After arriving, the four left the Atkins residence to attend a nearby party. Anderson returned alone to the Atkins residence a short time later, and the other three returned thereafter in the company of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Ebony Mason, who appeared inebriated or under the influence of drugs. Later, Mason asked for a ride home, and Anderson suggested that Doyle use Anderson’s truck. At approximately 10:30 p.m., Doyle left with Mason and the Atkins brothers in Anderson’s truck. Anderson awoke the next morning to find Doyle and the Atkins brothers asleep at the Atkins residence. When police later searched Anderson’s truck, they found a pair of blood-stained white socks between the seats. Further information led investigators to contact Mark Wattley, another of Doyle’s friends. Wattley was present during a conversation where Doyle made statements describing how Shawn Atkins was unable to subdue Mason and how “Bubba” Atkins intervened “and hit her with a head punch and dropped her.” Thereafter, Doyle told Wattley that he (Doyle) began kicking Mason in the head. Eventually, one of the men grabbed a brick or rock and hit the girl in the head. At one point in the conversation, Doyle demonstrated how he (Doyle) jumped in the air and caused both of his feet to come down on Mason during the beating. The police investigation eventually led to the execution of a search warrant at Doyle’s residence. During the search, the police impounded a pair of Adidas athletic shoes with soles that apparently matched treadwear impressions found at the crime scene and on Mason’s body. Doyle was then placed under arrest. After being advised of his Miranda rights, Doyle provided a statement to police explaining that he had been present when Mason was killed but that he did not participate in the killing. Later analysis of the impounded shoes confirmed that the treadwear impressions were consistent with the footwear impressions retrieved from the scene of the crime and observed upon Mason’s body. At trial, Doyle testified that on the night of January 15, 1994, “Bubba” Atkins brought Mason to the Atkins residence. Some time after her arrival, Mason asked for a ride downtown or home. Anderson then instructed Doyle to take Anderson’s truck and take Mason home. Doyle testified that Mason wanted to engage in sex with him and the Atkins brothers, so all four drove to Doyle’s apartment where each of the men had sex with Mason. Thereafter, the four left Doyle’s apartment in Anderson’s truck. Mason was riding in the back of the truck, and at some point, the truck stopped at a red light, and Mason jumped out of the truck. The Atkins brothers were eventually able to get Mason back in the truck, and the four proceeded to a deserted area outside Las Vegas. Doyle further testified that, once stopped, Shawn Atkins hit Mason in the face and a fight ensued. When it appeared that Shawn Atkins was unable to subdue Mason, “Bubba” Atkins came to his aid. Doyle denied any participation in the beating or killing, stating that he had watched from the back of the truck as Shawn and “Bubba” Atkins beat and kicked the girl. Later, while he and Shawn Atkins attempted to push start the truck, Doyle testified that he saw “Bubba” Atkins standing over Mason with a brick raised overhead. “Bubba” Atkins later discarded the brick in a garbage can. According to Doyle, “Bubba” Atkins was wearing the athletic shoes impounded by the police from Doyle’s apartment. Opinion, Exhibit 225, pp. 2-5 (ECF No. 174-7, pp. 29-32). 28 3 1 On January 12, 1995, a jury found Doyle guilty of first degree murder, conspiracy 2 to commit murder, first degree kidnapping, and sexual assault. See Verdicts, Exhibit 155 3 (ECF No. 172-11). Following a penalty hearing, the jury voted to impose the death 4 sentence for the murder. See Verdict, Exhibit 169 (ECF No. 173-10, p. 13). On May 23, 5 1995, the trial court sentenced Doyle to death for the murder. See Judgment of 6 Conviction, Exhibit 157 (ECF No. 173-2). Additionally, the court sentenced Doyle to six 7 years in prison for the conspiracy to commit murder, life in prison with the possibility of 8 parole for the kidnapping, and life in prison with the possibility of parole for the sexual 9 assault; the life sentences run consecutively to the death sentence and to one another, 10 and the six-year sentence runs concurrently with the other sentences. See id. 11 Doyle appealed. See Appellant’s Opening Brief, Exhibit 172 (ECF No. 173-10, pp. 12 20-64). The Nevada Supreme Court reversed the sexual assault conviction, finding that 13 there was insufficient evidence to show beyond a reasonable doubt that the victim was 14 alive when the sexual assault occurred. See Opinion, Exhibit 225, pp. 16-22 (ECF No. 15 174-7, pp. 43-49). The Nevada Supreme Court affirmed Doyle’s convictions of first degree 16 murder, conspiracy to commit murder, and first degree kidnapping, as well as the 17 sentences relative to those convictions. See id. The court denied rehearing on June 23, 18 1997. See Order Denying Rehearing, Exhibit 175 (ECF No. 173-10, p. 92). 19 Doyle then filed a petition for writ of habeas corpus in the state district court on 20 June 26, 1997. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 176 21 (ECF No. 174, pp. 2-41); Memorandum of Points and Authorities in Support of Petition 22 for Post-Conviction Relief, Exhibit 177 (ECF No. 174, pp. 43-67). The court held an 23 evidentiary hearing. See Transcript of Evidentiary Hearing, Respondents’ Exhibit 3 (ECF 24 Nos. 209-4, 209-5). The state district court then denied the petition on October 1, 1998. 25 See Findings of Fact, Conclusions of Law and Order, Exhibit 181 (ECF No. 74, pp. 94- 26 98). Doyle appealed. See Appellant’s Opening Brief, Exhibit 182 (ECF No. 174-2, pp. 2- 27 39). The Nevada Supreme Court affirmed on February 3, 2000. See Opinion, Exhibit 184 28 4 1 (ECF No. 174-3, pp. 2-18). The Nevada Supreme Court issued its remittitur on April 13, 2 2000. See Remittitur, Respondents’ Exhibit 5 (ECF No. 209-7). 3 Doyle initiated this federal habeas corpus action on February 28, 2000, by 4 submitting a pro se petition for writ of habeas corpus for filing (ECF No. 4). The Court 5 appointed counsel for Doyle. See Order entered May 2, 2000 (ECF No. 3). Approximately 6 eight years later, on May 14, 2008, following extensive discovery proceedings, Doyle filed 7 a first amended habeas petition (ECF No. 168). 8 Respondents moved to dismiss the first amended petition, arguing that it contained 9 claims that were unexhausted in state court (ECF No. 208). In response, Doyle moved 10 for a stay, to allow him to exhaust his claims in state court before proceeding with this 11 action (ECF No. 218). On December 18, 2009, the Court granted Doyle’s motion, and 12 stayed this action; the Court denied the motion to dismiss as moot (ECF No. 230). 13 On July 24, 2009, Doyle filed, in the state district court, a second state petition for 14 writ of habeas corpus. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 15 295 (ECF No. 265-3). On February 14, 2013, the court dismissed the petition, finding it 16 barred by the statute of limitations (NRS § 34.726), and by the laches doctrine (NRS § 17 34.800). See Findings of Fact, Conclusions of Law and Order, Exhibit 300 (ECF No. 266- 18 2). Doyle appealed. See Appellant’s Opening Brief, Exhibit 301 (ECF No. 266-3). The 19 Nevada Supreme Court affirmed on September 22, 2015. See Order of Affirmance, 20 Exhibit 304 (ECF No. 266-6). The court denied rehearing on December 2, 2015. See 21 Order Denying Rehearing, Exhibit 306 (ECF No. 266-8). The United States Supreme 22 Court denied certiorari on May 2, 2016. See Doyle v. Nevada, 136 S.Ct. 1829 (2016). The 23 Nevada Supreme Court issued its remittitur on May 6, 2016. See Remittitur, Exhibit 1 to 24 Motion to Vacate Stay (ECF No. 256-1). 25 This Court then lifted the stay of this action on June 28, 2016 (ECF No. 258). And, 26 on October 28, 2016, Doyle filed a second amended petition for writ of habeas corpus 27 (ECF No. 265) now the operative petition. Doyle’s second amended petition asserts the 28 following claims: 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. “[P]rosecutors excused prospective jurors on the basis of race,” in violation of Doyle’s federal constitutional rights. Second Amended Petition (ECF No. 265), pp. 11-35. 2. Trial counsel were ineffective, in the penalty phase of the trial, in violation of Doyle’s federal constitutional rights, for “failing to investigate and present mitigating evidence.” Id. at 35-97. 3A. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to object to improper victim-impact testimony during the guilt phase of trial.” Id. at 98-100. 3B. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to object to prosecutors’ misrepresentation of facts regarding the [Edwards] homicide.” Id. at 100-06. 3C. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to object to prosecutors’ use of gender to excuse prospective juror Emma Samuels.” Id. at 106-08. 3D. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to seek exclusion of hearsay statements.” Id. at 108-10. 3E. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to prepare Mr. Doyle for his testimony.” Id. at 110-11. 3F. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, for failing “to clarify when they could not hear or understand the trial judge.” Id. at 111. 3G. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to move to suppress the evidence recovered as a result of the search warrant.” Id. at 111-18. 3H. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to object to the introduction of a pair of stained pants without any explanatory testimony.” Id. at 118-20. 3I. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to object to prejudicial and multiple enlarged photographs of the victim.” Id. at 120-21. 3J. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, for failing “to present evidence impeaching Michael Smith’s testimony.” Id. at 121-23. 3K. Trial counsel were ineffective, in violation of Doyle’s federal constitutional rights, “for failing to request an instruction for the lesserincluded offense of second-degree kidnapping.” Id. at 123-24. 4. In violation of Doyle’s federal constitutional rights, “the prosecutor introduced statements made by Mr. Doyle’s codefendant without affording Mr. Doyle the opportunity to cross-examine ….” Id. at 125-27. 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5. Doyle’s federal constitutional rights were violated “because of the admission of impermissible and unduly prejudicial victim-impact evidence.” Id. at 128-37. 6A1. Doyle’s federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor improperly argued about mercy.” Id. at 139. 6A2. Doyle’s federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor misled the jury about life with parole sentencing.” Id. at 140-41. 6A3. Doyle’s federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor mislead the jury about mitigation.” Id. at 141-42. 6A4. Doyle’s federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor improperly expressed his opinion about the propriety of the death penalty.” Id. at 142. 6A5. Doyle’s federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor scared the jury into sentencing Mr. Doyle to death.” Id. at 143. 6A6. Doyle’s federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor improperly equated the death penalty with self-defense.” Id. at 144. 6A7. Doyle’s federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor misled the jury about Mr. Doyle’s involvement in a drive-by shooting.” Id. at 144-45. 6A8. Doyle’s federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor misrepresented the testimony of Gary and Maria Mason.” Id. at 145-47. 7. Doyle’s federal constitutional rights were violated “because the prosecutors failed to disclose material evidence under Brady v. Maryland, and knowingly presented false testimony in violation of Napue v. Illinois.” Id. at 148-69. 8E1. Doyle’s federal constitutional rights were violated because “Mr. Doyle cannot be guilty of both first-degree kidnapping predicated on murder and first-degree murder predicated on kidnapping.” Id. at 176-79. 8E2. Doyle’s federal constitutional rights were violated because “[t]he invalidity of Mr. Doyle’s sexual assault conviction invalidates his firstdegree kidnapping and first-degree murder convictions.” Id. at 179-83. 8E3. Doyle’s federal constitutional rights were violated because “[t]he Nevada Supreme Court improperly reweighed Mr. Doyle’s aggravating and mitigating circumstances after striking the kidnapping aggravating circumstance.” Id. at 183-87. 28 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9A1. Doyle’s federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court failed to properly instruct the jury as to the elements of first-degree premeditated and deliberate murder.” Id. at 188-94. 9A2. Doyle’s federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court’s reasonable doubt instruction was improper.” Id. at 194-96. 9A3. Doyle’s federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court’s malice aforethought instruction was improper.” Id. at 196-97. 9A4. Doyle’s federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court’s specific intent instruction was improper.” Id. at 197-200. 9A5. Doyle’s federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court’s guilt or innocence instruction was improper.” Id. at 200-01. 9A6. Doyle’s federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he kidnapping instructions reduced the state’s burden of proof, allowing the jury to find first-degree kidnapping based merely on second-degree kidnapping.” Id. at 201-06. 9B1. Doyle’s federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court improperly answered the jury’s question regarding comparative culpability.” Id. at 207-09. 9B2. Doyle’s federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court improperly failed to give the presumption of life instruction.” Id. at 209-11. 9B3. Doyle’s federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court’s reasonable doubt instruction was improper.” Id. at 211. 9B4. Doyle’s federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court’s Edmund instruction was improper.” Id. at 211-13. 9B5. Doyle’s federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court improperly failed [to] instruct the jury to find mitigating circumstances did not outweigh aggravating circumstances beyond a reasonable doubt.” Id. at 213-16. 9B6. Doyle’s federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court improperly failed to give the jury a form to indicate a finding that mitigating circumstances outweighed aggravating circumstances, creating an unconstitutional presumption of death.” Id. at 216-21. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9B7. Doyle’s federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court’s anti-sympathy instruction was unduly prejudicial.” Id. at 221-22. 10. Doyle’s federal constitutional rights were violated as a result of “the trial court’s failure to record critical proceedings.” Id. at 223-25. 11. Doyle’s death sentence is invalid, under the federal constitution, because “execution by lethal injection violates the constitutional prohibition against cruel and unusual punishments and his rights under the First and Fourteenth Amendments.” Id. at 226-53. 12. Doyle’s death sentence is invalid, under the federal constitution, “because his death sentence is the product of purposeful race discrimination by state officials.” Id. at 254-57. 13. Doyle’s conviction and sentence violate the federal constitution “because Mr. Doyle’s capital trial, sentencing, and review on direct appeal were conducted before state judicial officers whose tenure in office was not during good behavior but whose tenure was dependent on popular election.” Id. at 258-62. 14. Doyle’s death sentence is invalid, under the federal constitution, “because the Nevada capital punishment system operates in an arbitrary and capricious manner.” Id. at 263-71. 15. Doyle’s death sentence is invalid, under the federal constitution, “due to the restrictive conditions on Nevada’s death row.” Id. at 272-73. 16. Doyle’s death sentence is invalid, under the federal constitution, “due to the jury finding the statutory aggravating circumstances that the murder was committed to avoid or prevent lawful arrest.” Id. at 27489. 17A. Doyle’s federal constitutional rights were violated because “[t]here was insufficient evidence for the jury to convict Mr. Doyle of conspiracy to commit murder.” Id. at 290-93. 17B. Doyle’s federal constitutional rights were violated because “[t]here was insufficient evidence of first-degree kidnapping.” Id. at 293-94. 18. Doyle’s death sentence is invalid, under the federal constitution, “due to the jury finding the statutory aggravating circumstances that the murder was committed by a person under sentence of imprisonment….” Id. at 296-97. 26 19. Doyle’s conviction and death sentence are invalid under the federal constitution “because of the cumulative effect of the errors in this case.” Id. at 298-301. 27 Respondents filed their motion to dismiss (ECF No. 277) on March 10, 2017, 28 arguing that various claims in Doyle’s second amended habeas petition are barred by the 9 1 statute of limitations, unexhausted in state court, procedurally defaulted, and not 2 cognizable in this federal habeas corpus action. Doyle filed an opposition to the motion 3 to dismiss on August 7, 2017 (ECF No. 284). Respondents filed a reply on October 27, 4 2017 (ECF No. 292). 5 On August 7, 2017, with his opposition to the motion to dismiss, Doyle filed a 6 motion for discovery (ECF No. 286) and a motion for evidentiary hearing (ECF No. 287). 7 Respondents filed oppositions to those motions on October 27, 2017 (ECF Nos. 293, 8 294). Doyle filed replies on December 18, 2017 (ECF Nos. 298, 299). 9 Analysis 10 11 12 Statute of Limitations Legal Standards Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), there 13 is a statute of limitations applicable to federal habeas corpus petitions; it provides: 14 (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -- 15 16 17 18 19 20 21 22 23 24 25 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(A-D). 26 The petitioner is entitled to statutory tolling of the limitations period while a 27 “properly filed application for State post-conviction or other collateral review with respect 28 to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). 10 1 2 3 The AEDPA statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010). Expiration of the Limitations Period in this Case 4 Doyle’s judgment of conviction became final on September 22, 1997, which was 5 90 days after the Nevada Supreme Court denied rehearing on Doyle’s direct appeal. See 6 Order Denying Rehearing, Exhibit 175 (ECF No. 173-10, p. 92); see also Clay v. United 7 States, 537 U.S. 522, 528 n.3 (2003) (conviction final at expiration of 90-day period to 8 seek certiorari following decision of highest state court); Bowen v. Roe, 188 F.3d 1157, 9 1159 (9th Cir. 1999) (same). 10 Doyle timely filed his first state petition for writ of habeas corpus on June 26, 1997, 11 tolling the limitations period before it began to run. See Petition for Writ of Habeas Corpus 12 (Post-Conviction), Exhibit 176 (ECF No. 174, pp. 2-41); see also 28 U.S.C. § 2244(d)(2). 13 Doyle’s first state habeas action concluded, and the statutory tolling ceased, on April 13, 14 2000, when the Nevada Supreme Court issued its remittitur after affirming the denial of 15 Doyle’s petition. See Remittitur, Respondents’ Exhibit 5 (ECF No. 209-7). The limitation 16 period for the filing of Doyle’s federal habeas petition then began to run. 17 18 Doyle submitted his original pro se petition (ECF No. 4) for filing, to initiate this case, on February 28, 2000. That petition was unquestionably timely filed. 19 There was no statutory tolling of the limitations period by virtue of the pendency of 20 this federal habeas corpus action. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) 21 (pendency of federal habeas corpus action does not toll AEDPA limitations period). 22 Therefore, absent equitable tolling, the limitations period ran out on April 14, 2001. 23 Doyle did not file his first amended petition (ECF No. 168) until May 14, 2008, more 24 than seven years after the limitations period ran out. His second amended petition was 25 filed more than eight years after that, on October 28, 2016 (ECF No. 265). Therefore, 26 unless Doyle can show that equitable tolling is warranted, the question of the timeliness 27 of the claims in his second amended petition turns upon whether the claims in that petition 28 relate back to the filing of his timely original petition. In Mayle v. Felix, 545 U.S. 644 11 1 (2005), the Supreme Court held that “[s]o long as the original and amended petitions state 2 claims that are tied to a common core of operative facts, relation back will be in order,” 3 but “[a]n amended habeas petition ... does not relate back (and thereby escape AEDPA’s 4 one-year time limit) when it asserts a new ground for relief supported by facts that differ 5 in both time and type from those the original pleading set forth.” Mayle, 545 U.S. at 650, 6 664. 7 Equitable Tolling 8 Doyle argues that he is entitled to equitable tolling because he relied upon the 9 Court’s scheduling orders in this case. See Opposition to Motion to Dismiss (ECF No. 10 284), pp. 4-13. 11 The AEDPA limitations period is subject to equitable tolling. Holland v. Florida, 560 12 U.S. 631, 649 (2010). A petitioner may be entitled to equitable tolling if he can show “‘(1) 13 that he has been pursuing his rights diligently, and (2) that some extraordinary 14 circumstance stood in his way’ and prevented timely filing.” Id. (quoting Pace v. 15 DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Sossa v. Diaz, 729 F.3d 1225, 1229 16 (9th Cir. 2013) (“[T]he requirement that extraordinary circumstances stood in [the 17 petitioner’s] way suggests that an external force must cause the untimeliness, rather than 18 ... merely oversight, miscalculation or negligence on [the petitioner’s] part, all of which 19 would preclude the application of equitable tolling.” (internal quotations and citations 20 omitted)); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (“The petitioner must 21 additionally show that the extraordinary circumstances were the cause of his untimeliness 22 ... and that the extraordinary circumstances made it impossible to file a petition on time.” 23 (internal quotations, citations, and alteration omitted)). “The high threshold of 24 extraordinary circumstances is necessary ‘lest the exceptions swallow the rule.’” Lakey v. 25 Hickman, 633 F.3d 782, 786 (9th Cir. 2011), quoting Mendoza v. Carey, 449 F.3d 1065, 26 1068 (9th Cir. 2006). It is the habeas petitioner’s burden to establish that equitable tolling 27 is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 28 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on 12 1 habeas petitions, but the petitioner bears the burden of showing that equitable tolling is 2 appropriate.”). Doyle does not show that equitable tolling is warranted. 3 Doyle argues, essentially, that he is entitled to equitable tolling because he relied 4 upon the Court’s scheduling orders in determining when to file his amended petition. See 5 Opposition to Motion to Dismiss, pp. 4-13. Instructions from a court do not serve as a 6 basis for equitable tolling unless the court “affirmatively misled” the petitioner. Ford v. 7 Pliler, 590 F.3d 782, 786-87 (9th Cir. 2009). There is no showing by Doyle that he was 8 affirmatively misled. The Court’s scheduling orders granted leave for Doyle to conduct 9 discovery, set time limits for Doyle to do investigation and conduct discovery, and set time 10 limits for Doyle to file his amended petition; those orders certainly were not extraordinary 11 in any way, and they did not make any statement about, or have any bearing on, the 12 operation of the statute of limitations. Doyle has not made any factual allegation, and he 13 has not proffered any evidence, suggesting otherwise. 14 Moreover, the United States Supreme Court decided Mayle on June 23, 2005, 15 holding that an amended habeas petition does not relate back when it asserts a new 16 ground for relief supported by facts that differ in both time and type from those set forth 17 in the original pleading. Mayle, 545 U.S. at 650. If Doyle and his counsel were under any 18 misconception about whether new claims in an amended petition would relate back to 19 Doyle’s original petition, Mayle cleared that up. However, despite the import of Mayle, 20 Doyle did not file his first amended habeas petition until May 14, 2008, almost three years 21 after Mayle clarified the law regarding the relation back of claims in amended habeas 22 petitions. 23 Doyle has not shown that any extraordinary circumstance prevented timely filing 24 of his first and second amended habeas petitions. See Holland, 560 U.S. at 649. 25 Equitable tolling is not warranted. 26 27 28 13 1 Exhaustion of State Court Remedies Legal Standards 2 3 A federal court may not grant relief on a habeas corpus claim not exhausted in 4 state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal- 5 state comity, and is designed to give state courts the initial opportunity to correct alleged 6 constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust 7 a claim, a petitioner must fairly present that claim to the State’s highest court, and must 8 give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 9 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). The “fair 10 presentation” requirement is satisfied when the claim has been presented to the highest 11 state court by describing the operative facts and the legal theory upon which the federal 12 claim is based. See Anderson v. Harless, 459 U.S. 4, 6 (1982); Batchelor v. Cupp, 693 13 F.2d 859, 862 (9th Cir.1982), cert. denied, 463 U.S. 1212 (1983). To fairly present a 14 federal constitutional claim to the state court, the petitioner must alert the court to the fact 15 that he asserts a claim under the United States Constitution. Hiivala v. Wood, 195 F.3d 16 1098, 1106 (9th Cir.1999), cert. denied, 529 U.S. 1009 (2000), citing Duncan, 513 U.S. 17 at 365-66. 18 Nevada Supreme Court’s Mandatory Review under NRS § 177.055 19 With respect to several of his claims – namely, Grounds 5, 6A1, 6A2, 6A3, 6A4, 20 6A5, 6A6, 6A7, 6A8, 9B1, 9B2, 9B3, 9B4, 9B5, 9B6, 9B7, 12, 14, 16 and 18 – Doyle 21 argues that the Nevada Supreme Court addressed his claims, on his direct appeal, as 22 part of its mandatory review under NRS § 177.055. See Opposition to Motion to Dismiss 23 (ECF No. 287), pp. 72-85. NRS § 177.055 requires the Nevada Supreme Court to 24 consider whether the evidence supported the finding of the aggravating circumstances; 25 whether the sentence was imposed under the influence of passion, prejudice, or any other 26 arbitrary factor; and whether the death sentence was excessive. Doyle argues that, by 27 virtue of this provision, the Nevada Supreme Court ruled upon the subject federal 28 constitutional claims in this case. 14 1 To show that a claim was exhausted on account of the Nevada Supreme Court’s 2 mandatory review under NRS § 177.055, Doyle must show that the claims at issue were 3 “clearly encompassed” within the scope of NRS § 177.055 and “readily apparent” in the 4 record reviewed by the Nevada Supreme Court. See Comer v. Schriro, 463 F.3d 934, 5 954-56 (9th Cir. 2006). 6 As is discussed further below with respect to the individual claims, the Court 7 determines that the claims at issue – again, Grounds 5, 6A1, 6A2, 6A3, 6A4, 6A5, 6A6, 8 6A7, 6A8, 9B1, 9B2, 9B3, 9B4, 9B5, 9B6, 9B7, 12, 14, 16 and 18 – were not clearly 9 encompassed within the scope of NRS § 177.055, and Doyle has not shown them to have 10 been “readily apparent” in the record reviewed by the Nevada Supreme Court. The Court 11 finds that these claims were not exhausted on Doyle’s direct appeal by virtue of the 12 Nevada Supreme Court’s mandatory review under NRS § 177.055. 13 Anticipatory Default 14 The Supreme Court has recognized that under certain circumstances it may be 15 appropriate for a federal court to anticipate the state-law procedural bar of an 16 unexhausted claim, and to treat such a claim as subject to the procedural default doctrine. 17 “An unexhausted claim will be procedurally defaulted, if state procedural rules would now 18 bar the petitioner from bringing the claim in state court.” Dickens v. Ryan, 740 F.3d 1302, 19 1317 (9th Cir. 2014) (citing Coleman, 501 U.S. at 731). 20 In light of the procedural history of this case, and, in particular, the rulings of the 21 state courts in Doyle’s second state habeas action, Doyle’s unexhausted claims would be 22 ruled procedurally barred in state court if Doyle were to return to state court to attempt to 23 exhaust those claims. Therefore, the anticipatory default doctrine applies to Doyle’s 24 unexhausted claims, and the Court considers those claims to be technically exhausted, 25 but subject to the procedural default doctrine. See Dickens, 740 F.3d at 1317; see also 26 Motion to Dismiss (ECF No. 277), p. 38 (respondents’ argument that anticipatory default 27 doctrine should apply to unexhausted claims); Opposition to Motion to Dismiss (ECF No. 28 15 1 284), pp. 85-88 (Doyle’s argument that anticipatory default doctrine should apply to 2 unexhausted claims). 3 4 Procedural Default Legal Standards 5 In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails 6 to comply with the State’s procedural requirements in presenting his claims is barred by 7 the adequate and independent state ground doctrine from obtaining a writ of habeas 8 corpus in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in 9 those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner 10 who has failed to meet the State’s procedural requirements for presenting his federal 11 claims has deprived the state courts of an opportunity to address those claims in the first 12 instance.”). Where such a procedural default constitutes an adequate and independent 13 state ground for denial of habeas corpus, the default may be excused only if “a 14 constitutional violation has probably resulted in the conviction of one who is actually 15 innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting 16 from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). 17 To demonstrate cause for a procedural default, the petitioner must “show that 18 some objective factor external to the defense impeded” his efforts to comply with the state 19 procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment 20 must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 21 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden 22 of showing not merely that the errors [complained of] constituted a possibility of prejudice, 23 but that they worked to his actual and substantial disadvantage, infecting his entire 24 [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 25 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982). 26 In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective 27 assistance of post-conviction counsel may serve as cause, to overcome the procedural 28 default of a claim of ineffective assistance of trial counsel. In Martinez, the Supreme Court 16 1 noted that it had previously held, in Coleman v. Thompson, 501 U.S. 722, 746-47 (1991), 2 that “an attorney’s negligence in a postconviction proceeding does not establish cause” 3 to excuse a procedural default. Martinez, 566 U.S. at 15. The Martinez Court, however, 4 “qualif[ied] Coleman by recognizing a narrow exception: inadequate assistance of counsel 5 at initial-review collateral proceedings may establish cause for a prisoner’s procedural 6 default of a claim of ineffective assistance at trial.” Id. at 9. The Court described “initial- 7 review collateral proceedings” as “collateral proceedings which provide the first occasion 8 to raise a claim of ineffective assistance at trial.” Id. at 8. 9 The Procedural Default in this Case 10 On Doyle’s direct appeal and the appeal in his first state habeas action, the Nevada 11 Supreme Court addressed his claims on their merits. See Opinion, Exhibit 225, pp. 16-22 12 (ECF No. 174-7, pp. 43-49); Opinion, Exhibit 184 (ECF No. 174-3, pp. 2-18). Therefore, 13 claims asserted by Doyle on his direct appeal and on the appeal in his first state habeas 14 action were not procedurally barred in state court, and are not subject to the procedural 15 default doctrine in this case. 16 On Doyle’s appeal in his second state habeas action, however, the Nevada 17 Supreme Court ruled that his entire petition was untimely under NRS § 34.726, and barred 18 by laches under NRS § 34.800. See Order of Affirmance, Exhibit 304 (ECF No. 266-6). 19 Therefore, claims exhausted by Doyle in state court only in his second state habeas action 20 are subject to the procedural default doctrine. 21 Adequacy of the State Procedural Bars 22 Doyle argues that the state procedural rules applied to bar his claims in his second 23 state habeas action were not adequate to support application of the procedural default 24 doctrine. See Opposition to Motion to Dismiss (ECF No. 284), pp. 89-111. 25 A state procedural rule is “adequate” if it was “clear, consistently applied, and well- 26 established at the time of the petitioner’s purported default.” Calderon v. United States 27 Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (citation and internal quotation 28 marks omitted); see also Ford v. Georgia, 498 U.S. 411, 424 (1991) (state procedural rule 17 1 adequate if “firmly established and regularly followed by the time as of which it is to be 2 applied” (citation and internal quotation marks omitted)); Lambright v. Stewart, 241 F.3d 3 1201, 1203 (9th Cir. 2001). 4 In Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), the court of appeals 5 established a burden-shifting test for analyzing adequacy. Under Bennett, the State 6 carries the initial burden of pleading “the existence of an independent and adequate state 7 procedural ground as an affirmative defense.” Bennett, 322 F.3d at 586. The burden then 8 shifts to the petitioner “to place that defense in issue,” which the petitioner may do “by 9 asserting specific factual allegations that demonstrate the inadequacy of the state 10 procedure, including citation to authority demonstrating inconsistent application of the 11 rule.” Id. If the petitioner meets this burden, “the ultimate burden” of proving the adequacy 12 of the procedural rule rests with the State, which must demonstrate “that the state 13 procedural rule has been regularly and consistently applied in habeas actions.” Id.; see 14 also King v. Lamarque, 464 F.3d 963, 966-67 (9th Cir. 2006). 15 Here, the respondents meet their initial burden under Bennett by asserting that 16 NRS §§ 34.726 and 34.800 constituted independent and adequate state procedural 17 grounds for the Nevada Supreme Court’s rulings. See Motion to Dismiss (ECF No. 277), 18 pp. 30-31; see also Bennett, 322 F.3d at 586. In response, Doyle argues that both NRS 19 § 34.726 and 34.800 were inadequate to support application of the procedural default 20 doctrine. See Opposition to Motion to Dismiss (ECF No. 284), pp. 93-111. 21 Regarding NRS § 34.726, the Nevada statute of limitations, the Ninth Circuit Court 22 of Appeals has held that rule to be adequate to support application of the procedural 23 default defense. See Moran v. McDaniel, 80 F.3d 1261, 1269-70 (9th Cir. 1996); see also 24 High v. Ignacio, 408 F.3d 585, 590 (9th Cir. 2005); Collier v. Bayer, 408 F.3d 1279, 1285 25 (9th Cir. 2005); Loveland v. Hatcher, 231 F.3d 640, 642-63 (9th Cir. 2000). The Ninth 26 Circuit Court of Appeals has never ruled NRS § 34.726 to be inadequate. Nevertheless, 27 Doyle argues that NRS § 34.726 is inadequate in his case. See Opposition to Motion to 28 Dismiss (ECF No. 284), pp. 103-11. The Court finds that Doyle does not show NRS § 18 1 34.726 to be other than clear, consistently applied and well-established. The Nevada 2 courts’ exercise of discretion in isolated cases does not necessarily render procedural 3 rules inadequate to support the procedural default defense in federal court. See Walker 4 v. Martin, 562 U.S. 307, 319-21 (2011) (rule not automatically inadequate “upon a 5 showing of seeming inconsistencies;” state court must be allowed discretion “to avoid the 6 harsh results that sometimes attend consistent application of an unyielding rule”); see 7 also Beard v. Kindler, 558 U.S. 53, 60-61 (2009) (“[D]iscretionary rule can be ‘firmly 8 established’ and ‘regularly followed’ – even if the appropriate exercise of discretion may 9 permit consideration of a federal claim in some cases but not others.”). Doyle has not met 10 his burden under Bennett, to assert specific factual allegations demonstrating the 11 inadequacy of the statute of limitations in NRS § 34.726. NRS § 34.726 is adequate to 12 support the procedural default defense asserted by respondents. 13 Regarding, Nevada’s laches rule, codified at NRS § 34.800, the Ninth Circuit has 14 found that procedural rule, too, to be adequate for purposes of the procedural default 15 doctrine. See Moran, 80 F.3d at 1270; see also Ybarra v. McDaniel, 656 F.3d 984, 990- 16 91 (9th Cir. 2011). Here again, the Ninth Circuit Court of Appeals has never ruled NRS § 17 34.800 to be inadequate, but Doyle argues that NRS § 34.800 is inadequate in this case. 18 See Opposition to Motion to Dismiss (ECF No. 284), pp. 93-103. However, again, the 19 exercise of discretion in isolated cases does not necessarily render a procedural rule 20 inadequate to support the procedural default defense in federal court. See Walker, 562 21 U.S. at 319-21; Beard, 558 U.S. at 60-61. Doyle has not met his burden under Bennett, 22 to assert specific factual allegations demonstrating the inadequacy of the laches rule in 23 NRS § 34.800. NRS § 34.800 is adequate to support the procedural default defense 24 asserted by respondents. 25 Independence of the State Procedural Bars 26 Doyle also argues that the state procedural rules applied to bar his claims in state 27 court, in his second state habeas action, were not applied independently of federal law. 28 See Opposition to Motion to Dismiss (ECF No. 284), pp. 91-93. 19 1 “For a state procedural rule to be ‘independent,’ the state law basis for the decision 2 must not be interwoven with the federal law.” Park v. California, 202 F.3d 1146, 1152 3 (2000) (citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). The state procedural 4 rule is “so interwoven if ‘the state has made application of the procedural bar depend on 5 an antecedent ruling on federal law [such as] the determination of whether federal 6 constitutional error has been committed.’” Id. (quoting Ake v. Oklahoma, 470 U.S. 68, 75 7 (1985)). 8 Doyle relies on a footnote in the Supreme Court’s opinion in Rippo v. Baker, 137 9 S.Ct. 905 (2017) (per curiam), and contends that the procedural rules were not applied 10 independently of federal law in this case because the Nevada Supreme Court considered 11 the merits of his claims in determining that he did not show cause and prejudice to 12 overcome the procedural bars. See Opposition to Motion to Dismiss (ECF No. 284), pp. 13 92-93. In Rippo, the Supreme Court reviewed, and overruled, the Nevada Supreme 14 Court’s holding regarding the substantive federal-law claim in the case – a claim of 15 unconstitutional judicial bias. See Rippo, 137 S.Ct. at 906-07. In a footnote, the Supreme 16 Court stated: 17 20 The [Nevada Supreme Court] further relied on its bias holding to determine that Rippo had not established cause and prejudice to overcome various state procedural bars. 132 Nev., at ––––, 368 P.3d, at 745. Because the court below did not invoke any state-law grounds “independent of the merits of [Rippo's] federal constitutional challenge,” we have jurisdiction to review its resolution of federal law. Foster v. Chatman, 578 U.S. ––––, ––– –, 136 S.Ct. 1737, 1746, 195 L.Ed.2d 1 (2016). 21 Id. at 907 n.1. The Supreme Court appears to have seen the Nevada Supreme Court’s 22 analysis of the substantive federal claim as antecedent to its ruling regarding the 23 procedural bar. That is not the case here. In this case, the Nevada Supreme Court first 24 identified the procedural bars, and stated that it was “prohibited by statute from 25 addressing the merits” of Doyle’s claims absent a showing of good cause for Doyle’s long 26 delay in asserting those claims. See Order of Affirmance, Exhibit 304, pp. 2-4 (ECF No. 27 266-6, pp. 3-5). The court then went on to determine that Doyle failed to show cause and 28 prejudice. See id. at 4-10 (ECF No. 266-6, pp. 5-11). In this case, the Nevada Supreme 18 19 20 1 Court’s consideration of the merits of the federal claims was not antecedent to the ruling 2 regarding the procedural bars. 3 The Court determines that the Nevada courts’ application of NRS §§ 34.726 and 4 34.800 to bar Doyle’s claims in his second state habeas action was independent of federal 5 law, such as to allow application of the procedural default doctrine in this case. Doyle’s Claims of Actual Innocence under Schlup 6 7 Doyle argues that he can overcome the procedural default bars of his claims by a 8 showing of actual innocence. See Opposition to Motion to Dismiss (ECF No. 284), pp. 9 134-41. 10 A habeas petitioner can overcome a procedural default, allowing consideration of 11 the defaulted claim on its merits, by showing that he is actually innocent. See Schlup v. 12 Delo, 513 U.S. 298 (1995). To demonstrate actual innocence to overcome a procedural 13 bar under Schlup, a petitioner must present “new reliable evidence – whether it be 14 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 15 evidence – that was not presented at trial.” Id. at 324. By means of that evidence, and in 16 light of all the evidence in the case, the petitioner “must show that it is more likely than 17 not that no reasonable juror would have convicted him in the light of the new evidence.” 18 Id. at 327; see also id. at 329 (“a petitioner does not meet the threshold requirement 19 unless he persuades the district court that, in light of the new evidence, no juror, acting 20 reasonably, would have voted to find him guilty beyond a reasonable doubt”); House v. 21 Bell, 547 U.S. 518, 538, quoting Schlup, 513 U.S. at 327-28 (regarding evidence to be 22 considered). “Based on this total record, the court must make a ‘probabilistic 23 determination about what reasonable, properly instructed jurors would do.’” House, 547 24 U.S. at 538, quoting Schlup, 513 U.S. at 329. “The Court’s function is not to make an 25 independent factual determination about what likely occurred, but rather to assess the 26 likely impact of the evidence on reasonable jurors.” House, 547 U.S. at 538. Meeting this 27 standard “raise[s] sufficient doubt about [the petitioner’s] guilt to undermine confidence in 28 the result of the trial without the assurance that the trial was untainted by constitutional 21 1 error,” warranting “a review of the merits of the constitutional claims[.]” Schlup, 513 U.S. 2 at 317. 3 Doyle first points out that the Nevada Supreme Court vacated his sexual assault 4 conviction, undermining one of the three theories of first degree murder relied upon by 5 the prosecution – that the murder was committed in perpetration of a sexual assault. See 6 Opposition to Motion to Dismiss (ECF No. 284), p. 135. This, however, does not show 7 Doyle to be factually innocent. There were two other theories of first degree murder 8 advanced by the prosecution: that the murder was committed in perpetration of 9 kidnapping, and that the killing was willful, deliberate and premeditated. There is no 10 showing that Doyle is innocent of murder under either of those theories. 11 Next, Doyle argues that new evidence impeaching the testimony of three 12 prosecution witnesses shows that he is innocent. See id. at 135-37. That, however, is not 13 the sort of new evidence of innocence contemplated by Schlup. Such evidence, providing 14 only “a basis for some degree of impeachment of the prosecution's main witnesses ... 15 does not ... fundamentally call into question the reliability of [the] conviction.” Sistrunk v. 16 Armenakis, 292 F.3d 669, 677 (9th Cir. 2002) (en banc). The impeachment evidence 17 proffered by Doyle is not such as to make it more likely than not that no reasonable juror 18 would have found Doyle guilty beyond a reasonable doubt had they seen that evidence. 19 Doyle also argues that he can show his innocence by means of newly developed 20 evidence suggesting that he is a “follower,” and that, in his childhood, he was forced to 21 passively observe violence and abuse against young women. See Opposition to Motion 22 to Dismiss (ECF No. 284), pp. 137-39. Here too, the Court finds that this evidence does 23 not show Doyle’s actual innocence as contemplated in Schlup. 24 Finally, Doyle argues that he can show that he is actually innocent of the death 25 penalty. See id. at 139-41. Doyle points out that the Nevada Supreme Court struck one 26 of the aggravating circumstances found by the jury – that the murder was committed by 27 a person engaged in the commission of or an attempt to commit a kidnapping. Doyle 28 argues that the other two aggravating circumstances found by the jury – that the murder 22 1 was committed by a person under sentence of imprisonment, and that the murder was 2 committed to avoid or prevent a lawful arrest – are unconstitutionally vague. Doyle also 3 argues that new mitigating evidence would outweigh the two remaining aggravating 4 circumstances. This is not new evidence of factual innocence, as contemplated by 5 Schlup. 6 Doyle requests an evidentiary hearing with respect to his claim of actual innocence 7 under Schlup. See Motion for Evidentiary Hearing (ECF No. 287), pp. 6-7. The Court finds 8 that an evidentiary hearing on this issue is unnecessary. Viewing the evidence proffered 9 by Doyle in support of his arguments under Schlup in the light most favorable to Doyle, 10 the Court determines that Doyle falls far short of making the required showing to 11 overcome his procedural defaults. 12 Cognizability and Ripeness of Claims 13 In their motion to dismiss, respondents make arguments that certain of Doyle’s 14 claims are not ripe or cognizable, such that relief may be granted upon them in this federal 15 habeas corpus action. See Motion to Dismiss (ECF No. 277), pp. 39-40. The Court 16 determines that those arguments will be better addressed – with respect to the claims 17 remaining after this motion to dismiss is resolved – after respondents file an answer and 18 Doyle files a reply. The Court declines to address these arguments at this time. This order 19 is without prejudice to respondents reasserting these arguments in their answer. 20 21 Analysis of Individual Claims Ground 1 22 In Ground 1 of his second amended habeas petition, Doyle claims that 23 “prosecutors excused prospective jurors on the basis of race,” in violation of his federal 24 constitutional rights. Second Amended Petition (ECF No. 265), pp. 11-35. 25 Respondents do not argue that Ground 1 is barred by the statute of limitations. 26 See Motion to Dismiss (ECF No. 277). Ground 1 of Doyle’s second amended petition 27 arises from the same core of operative facts as Ground 1 of his original petition, and it 28 23 1 therefore relates back to the filing of the original petition. See Petition for Writ of Habeas 2 Corpus (ECF No. 4), p. 3. Ground 1 is not barred by the statute of limitations. 3 Nor do respondents argue that the due process and equal protection claims in 4 Ground 1 are unexhausted or procedurally defaulted. See Motion to Dismiss (ECF No. 5 277), pp. 29, 31-33. 6 Respondents do, however, argue that the ineffective assistance of counsel claims 7 in Ground 1 are unexhausted in state court. See id. at 32-33. Doyle responds, arguing 8 that he did raise the ineffective assistance of counsel portions of Ground 1 in his second 9 state habeas action, and the Nevada courts declined to rule on them in that action, on the 10 ground of law of the case, meaning that the ineffective assistance of counsel claims must 11 have been asserted and ruled upon on their merits previously in state court (though Doyle 12 does not point to any previous state-court proceeding in which they were actually 13 asserted). See Opposition to Motion to Dismiss (ECF No. 284), pp. 61-64. To support his 14 argument that he raised these ineffective assistance of counsel claims in his second state 15 habeas action, Doyle points only to the heading of Claim 1 in his petition in that action, 16 which stated: 17 20 Mr. Doyle’s conviction and death sentence are invalid under the state and federal constitutional guarantees of due process, equal protection, effective assistance of counsel, an impartial jury, and a reliable sentencing determination because prosecutors excused prospective jurors on the basis of race. The Nevada Supreme Court violated procedural due process in its review of this claim. U.S. Const. amends. VI, XIII & XIV; Nev. Const. art. I, §§ 1, 8, art. IV, § 21. 21 Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 295, p. 19 (ECF No. 265-3, 22 p. 20). That, however, is the only reference to ineffective assistance of counsel in Claim 23 1 of Doyle’s petition in his second state habeas action. There are no factual allegations 24 supporting any such claims. In contrast, in Ground 1 of his second amended petition in 25 this case, Doyle included the following: 18 19 26 27 28 3. Insofar as prior counsel failed to conduct a thorough comparative juror analysis, counsel were ineffective. Both trial and appellate counsel had an obligation to raise nonfrivolous objections and provide arguments in support thereof. See Evitts v. 24 4 Lucey, 469 U.S. 387, 396 (1985); Smith v. Robbins, 528 U.S. 259, 285 (2000); see also 1989 ABA Guidelines, Guideline 11.7.2, 11.7.3. Here, trial counsel raised a Batson, objection, and argued the objection on appeal, however, counsel failed to conduct a thorough comparative juror analysis. Compare Claim One with ECF No. 173-10 at 41-47. This was deficient. And, had counsel acted deficiently, the result of Mr. Doyle’s state proceedings would have been different because error under Batson is structural, requiring a new trial. See Batson, 476 U.S. at 100. 5 Second Amended Petition (ECF No. 265), p. 34. Those allegations do not appear in the 6 petition filed in Doyle’s second state habeas action. There were no facts asserted in Claim 7 1 of that petition to substantiate any ineffective assistance of counsel claim. The same 8 was true in Doyle’s briefing on the appeal in that action. In fact, on the appeal in Doyle’s 9 second state habeas action, Doyle stated in his opening brief: “Trial counsel did 10 everything possible to prevent a Batson violation.” Appellant’s Opening Brief, Exhibit 301, 11 p. 7 (ECF No. 266-3, p. 29). Doyle did not fairly present the factual bases for the 12 ineffective assistance of counsel claims in Ground 1 to the state supreme court, in his 13 second state habeas action, such as to give that court an opportunity to rule on such 14 claims. The ineffective assistance of counsel claims in Ground 1 are unexhausted. 1 2 3 15 As is discussed above, the anticipatory default doctrine applies, and the Court 16 considers the claims of ineffective assistance of counsel in Ground 1 to be technically 17 exhausted, but procedurally defaulted. 18 Inadequate assistance of counsel in a first state habeas action may establish 19 cause for the procedural default of a claim of ineffective assistance of trial counsel. See 20 Martinez, 566 U.S. at 9. This rule may provide a means for Doyle to overcome the 21 procedural default of the ineffective assistance of trial counsel claim in Ground 1. 22 However, this issue is intertwined with the merits of Ground 1, such that it will be better 23 addressed in conjunction with the merits of the claim. The Court will, therefore, deny 24 respondents’ motion to dismiss with respect to the ineffective assistance of trial counsel 25 claim in Ground 1, without prejudice to respondents asserting the anticipatory procedural 26 default defense to that claim in their answer. 27 Martinez does not apply to claims of ineffective assistance of appellate counsel, 28 however. See Davila v. Davis, 137 S. Ct. 2058, 2062–2063, 2065-66 (2017). Doyle does 25 1 not make any argument, specific to the claim of ineffective assistance of appellate counsel 2 in Ground 1, that he can overcome the anticipatory procedural default of that claim. 3 Therefore, the claim of ineffective assistance of appellate counsel in Ground 1 will 4 be dismissed as procedurally defaulted; respondents’ motion to dismiss will be denied 5 with respect to the remainder of Ground 1. 6 Ground 2 7 In Ground 2 of his second amended petition, Doyle claims that his trial counsel 8 were ineffective, in the penalty phase of his trial, in violation of his federal constitutional 9 rights, for “failing to investigate and present mitigating evidence.” Second Amended 10 Petition (ECF No. 265), pp. 35-97. 11 Respondents argue that Ground 2 is barred by the statute of limitations. There is 12 no claim in Doyle’s original petition arising from the same operative facts, so Ground 2 13 does not relate back to the filing of Doyle’s original petition. See Petition for Writ of Habeas 14 Corpus (ECF No. 4). Doyle argues, however, that Ground 2 is timely because the factual 15 predicate of the claim could not previously “have been discovered through the exercise 16 of due diligence.” See Opposition to Motion to Dismiss (ECF No. 284), pp. 14-19; see 17 also 28 U.S.C. § 2244(d)(1)(D). The Court finds Doyle’s argument in this regard to be 18 without merit. The mitigating evidence that Doyle faults his trial counsel for not 19 investigating and presenting at trial concerns events that occurred in Doyle’s childhood. 20 There is no reason shown by Doyle why it necessarily took him eight years to formulate 21 and plead this claim in this case. 28 U.S.C. § 2244(d)(1)(D) does not save Ground 2 from 22 the operation of the statute of limitations. Ground 2 is barred by the statute of limitations. 23 Respondents also argue that Ground 2 is procedurally defaulted. However, as this 24 is a claim of ineffective assistance of trial counsel, Doyle could possibly show cause and 25 prejudice to overcome the procedural default, on account of ineffective assistance of 26 counsel in his first state habeas action. See Martinez, 566 U.S. at 9. That issue, however, 27 is intertwined with the question of the merits of the claim, which has not yet been fully 28 26 1 briefed. Therefore, the Court does not reach the question whether this claim is barred by 2 the procedural default doctrine. 3 Ground 2 will be dismissed as barred by the statute of limitations. Ground 3A 4 5 In Ground 3A of his second amended petition, Doyle claims that his trial counsel 6 were ineffective, in violation of his federal constitutional rights, “for failing to object to 7 improper victim-impact testimony during the guilt phase of trial.” Second Amended 8 Petition (ECF No. 265), pp. 98-100. 9 Respondents argue that Ground 3A is barred by the statute of limitations. Doyle 10 makes no argument that Ground 3A relates back to his original petition, or that it is 11 otherwise timely. There is no claim in Doyle’s original petition that arises from the same 12 core of operative facts. See Petition for Writ of Habeas Corpus (ECF No. 4). Ground 3A 13 does not relate back to the filing of Doyle’s original petition, and is barred by the statute 14 of limitations. 15 Respondents also argue that Ground 3A is procedurally defaulted. However, as 16 this is a claim of ineffective assistance of trial counsel, Doyle could possibly show cause 17 and prejudice to overcome the procedural default, on account of ineffective assistance of 18 counsel in his first state habeas action. See Martinez, 566 U.S. at 9. That issue, however, 19 is intertwined with the question of the merits of the claim, which has not yet been fully 20 briefed. Therefore, the Court does not reach the question whether this claim is barred by 21 the procedural default doctrine. 22 23 Ground 3A will be dismissed as barred by the statute of limitations. Ground 3B 24 In Ground 3B of his second amended petition, Doyle claims that his trial counsel 25 were ineffective, in violation of his federal constitutional rights, “for failing to object to 26 prosecutors’ misrepresentation of facts regarding the [Edwards] homicide.” Second 27 Amended Petition (ECF No. 265), pp. 100-06. 28 27 1 Respondents argue that Ground 3B is barred by the statute of limitations. There is 2 no claim in Doyle’s original petition that arises from the same core of operative facts. See 3 Petition for Writ of Habeas Corpus (ECF No. 4). Ground 3B does not relate back to the 4 filing of Doyle’s original petition. Doyle argues, however, that Ground 3B is timely because 5 the factual predicate of the claim could not previously “have been discovered through the 6 exercise of due diligence.” See Opposition to Motion to Dismiss (ECF No. 284), pp. 19- 7 22; see also 28 U.S.C. § 2244(d)(1)(D). The Court finds Doyle’s argument in this regard 8 to be without merit. Doyle argues that he only discovered the factual predicate of this 9 claim in March 2005, when the State produced certain documents in discovery in this 10 case, and in March 2008, when Doyle’s sister signed a declaration stating, in essence, 11 that Doyle was not in a gang. With respect to the material received in March 2005, that 12 was more than three years before Doyle filed his first amended petition; Doyle’s argument 13 does not account for that three-year delay. And, with respect to Doyle’s sister’s 14 declaration – and, for that matter, the material received in March 2005, to the extent Doyle 15 claims it revealed that he was not in a gang – surely, Doyle did not need a declaration of 16 his sister, or any discovery from the State, to know whether or not he was in a gang. 28 17 U.S.C. § 2244(d)(1)(D) does not save Ground 3B from the operation of the statute of 18 limitations. Ground 3B is barred by the statute of limitations. 19 Respondents also argue that Ground 3B is procedurally defaulted. Doyle argues 20 that he can overcome the procedural default of this claim by showing cause and prejudice 21 on account of the State’s suppression of evidence, and also on account of ineffective 22 assistance of counsel in his first state habeas action. See Martinez, 566 U.S. at 9. Those 23 issues are intertwined with the question of the merits of the claim, which has not yet been 24 fully briefed. Therefore, the Court does not reach the question whether this claim is barred 25 by the procedural default doctrine. 26 Ground 3B will be dismissed as barred by the statute of limitations. 27 28 28 1 Ground 3C 2 In Ground 3C of his second amended petition, Doyle claims that his trial counsel 3 were ineffective, in violation of his federal constitutional rights, “for failing to object to 4 prosecutors’ use of gender to excuse prospective juror Emma Samuels.” Second 5 Amended Petition (ECF No. 265), pp. 106-08. 6 Respondents argue that Ground 3C does not relate back to Doyle’s original 7 petition, and is therefore barred by the statute of limitations. Doyle argues that Ground 8 3C relates back to Ground 1 of his original petition, which is a claim that his constitutional 9 rights were violated because the State used peremptory challenges to remove African- 10 Americans from the jury pool. See Opposition to Motion to Dismiss (ECF No. 284), pp. 11 23-24; see also Petition for Writ of Habeas Corpus (ECF No. 4), p. 3. The Court finds that 12 Ground 3C does not relate back. Ground 3C of Doyle’s second amended petition 13 concerns trial counsel’s failure to object to the peremptory strike of the juror as allegedly 14 based on gender; Ground 1 of Doyle’s original petition claims the State’s peremptory 15 strike of the juror was because she is African-American. The core of operative facts 16 underlying the two claims is different. Ground 3C does not relate back, and it is therefore 17 barred by the statute of limitations. 18 Respondents also argue that Ground 3C is procedurally defaulted. However, as 19 this is a claim of ineffective assistance of trial counsel, Doyle could possibly show cause 20 and prejudice to overcome the procedural default, on account of ineffective assistance of 21 counsel in his first state habeas action. See Martinez, 566 U.S. at 9. That issue, however, 22 is intertwined with the question of the merits of the claim, which has not yet been fully 23 briefed. Therefore, the Court does not reach the question whether this claim is barred by 24 the procedural default doctrine. 25 Ground 3C will be dismissed as barred by the statute of limitations. 26 27 28 29 1 Ground 3D 2 In Ground 3D of his second amended petition, Doyle claims that his trial counsel 3 were ineffective, in violation of his federal constitutional rights, “for failing to seek 4 exclusion of hearsay statements.” Second Amended Petition (ECF No. 265), pp. 108-10. 5 Respondents argue that Ground 3D is barred by the statute of limitations. Doyle 6 makes no argument that Ground 3D relates back to his original petition, or any other 7 argument that Ground 3D, specifically, is timely. There is no claim in Doyle’s original 8 petition that arises from the same core of operative facts as Ground 3D. See Petition for 9 Writ of Habeas Corpus (ECF No. 4). Ground 3D does not relate back to the filing of 10 Doyle’s original petition, and is barred by the statute of limitations. 11 Respondents also argue that Ground 3D is procedurally defaulted. However, as 12 this is a claim of ineffective assistance of trial counsel, Doyle could possibly show cause 13 and prejudice to overcome the procedural default, on account of ineffective assistance of 14 counsel in his first state habeas action. See Martinez, 566 U.S. at 9. That issue, however, 15 is intertwined with the question of the merits of the claim, which has not yet been fully 16 briefed. Therefore, the Court does not reach the question whether this claim is barred by 17 the procedural default doctrine. 18 19 Ground 3D will be dismissed as barred by the statute of limitations. Ground 3E 20 In Ground 3E of his second amended petition, Doyle claims that his trial counsel 21 were ineffective, in violation of his federal constitutional rights, “for failing to prepare Mr. 22 Doyle for his testimony.” Second Amended Petition (ECF No. 265), pp. 110-11. 23 Respondents argue that Ground 3E is barred by the statute of limitations. Doyle, 24 however, argues that such a claim was incorporated into his original petition, and, 25 therefore, Ground 3E relates back to the filing of the original petition. On page 10 of his 26 pro se original petition, Doyle stated: 27 28 Petitioner is informed and believes that numerous additional meritorious claims exist under the Fifth, Sixth, Eighth, and Fourteenth Amendments that would demonstrate the invalidity of his conviction and 30 5 sentencing under the federal constitution. Such additional claims were not raised in direct appeal or state post-conviction proceedings, due to the ineffective assistance and/or conflicts of interest of previous counsel, and/or the concealment of evidence by State actors. A list of potential claims that Petitioner drew to the attention of post-conviction habeas counsel, but which previous counsel ignored, is attached to this petition. Petitioner will seek to amend this petition to include any actual constitutional claims, pursuant to McClesky v. Zant, 499 U.S. 467 (1991), after counsel has been appointed in this case and has conducted litigation necessary to file such a petition. See McFarland v. Scott, 512 U.S. 849, 855-856 (1994). 6 Petition for Writ of Habeas Corpus, p. 10 (ECF No. 4, p. 10). Attached to the original 7 petition are documents, including an April 7, 1999, letter from Doyle to his state post- 8 conviction counsel, listing claims that Doyle apparently wanted his state post-conviction 9 counsel to assert. See Petition for Writ of Habeas Corpus (ECF No. 4, pp. 54-61). The 10 Court construes Doyle’s pro se original petition liberally in determining what claims it 11 asserted. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010); Zichko v. Idaho, 247 12 F.3d 1015, 1020 (9th Cir. 2001). The Court determines that the additional claims listed in 13 the documents attached to Doyle’s original petition (ECF No. 4, pp. 54-61) were included 14 in the original petition for purposes of the Mayle relation back analysis. One of those 15 claims was that: “Counsel failed to prepare me to take the stand prior to calling me to the 16 stand.” Petition for Writ of Habeas Corpus (ECF No. 4, p. 54). Ground 3E relates back to 17 that claim in his original petition, and, consequently, is not barred by the statute of 18 limitations. 1 2 3 4 19 Respondents also argue that Ground 3E is procedurally defaulted. However, as 20 this is a claim of ineffective assistance of trial counsel, Doyle can possibly show cause 21 and prejudice to overcome the procedural default, on account of ineffective assistance of 22 counsel in his first state habeas action. See Martinez, 566 U.S. at 9. That issue, however, 23 is intertwined with the question of the merits of the claim, which has not yet been fully 24 briefed. 25 The Court will, therefore, deny respondents’ motion to dismiss, with respect to 26 Ground 3E, without prejudice to respondents raising the procedural default defense in 27 their answer. 28 31 1 Ground 3F 2 In Ground 3F of his second amended habeas petition, Doyle claims that his trial 3 counsel were ineffective, in violation of his federal constitutional rights, for failing “to clarify 4 when they could not hear or understand the trial judge.” Second Amended Petition (ECF 5 No. 265), p. 111. 6 Respondents argue that Ground 3F is barred by the statute of limitations. Doyle 7 makes no argument that Ground 3F relates back to his original petition, or any other 8 argument that Ground 3F, specifically, is timely. There is no claim in Doyle’s original 9 petition that arises from the same core of operative facts as Ground 3F. See Petition for 10 Writ of Habeas Corpus (ECF No. 4). Ground 3F does not relate back to the filing of Doyle’s 11 original petition, and is barred by the statute of limitations. 12 Respondents also argue that Ground 3F is procedurally defaulted. However, as 13 this is a claim of ineffective assistance of trial counsel, Doyle could possibly show cause 14 and prejudice to overcome the procedural default, on account of ineffective assistance of 15 counsel in his first state habeas action. See Martinez, 566 U.S. at 9. That issue, however, 16 is intertwined with the question of the merits of the claim, which has not yet been fully 17 briefed. Therefore, the Court does not reach the question whether this claim is barred by 18 the procedural default doctrine. 19 20 Ground 3F will be dismissed as barred by the statute of limitations. Ground 3G 21 In Ground 3G of his second amended petition, Doyle claims that his trial counsel 22 were ineffective, in violation of his federal constitutional rights, “for failing to move to 23 suppress the evidence recovered as a result of the search warrant.” Second Amended 24 Petition (ECF No. 265), pp. 111-18. 25 Respondents do not argue that Ground 3G is barred by the statute of limitations. 26 See Motion to Dismiss (ECF No. 277), p. 21. Ground 3G of Doyle’s second amended 27 petition arises from the same core of operative facts as Ground 5(2) of his original petition, 28 32 1 and it therefore relates back to the filing of the original petition. See Petition for Writ of 2 Habeas Corpus (ECF No. 4), p. 8. Ground 3G is not barred by the statute of limitations. 3 4 5 6 Nor do respondents argue that Ground 3G is unexhausted or barred by the procedural default doctrine. See Motion to Dismiss (ECF No. 277), p. 31. Respondents’ motion to dismiss will be denied with respect to Ground 3G. Ground 3H 7 In Ground 3H of his second amended petition, Doyle claims that his trial counsel 8 were ineffective, in violation of his federal constitutional rights, “for failing to object to the 9 introduction of a pair of stained pants without any explanatory testimony.” Second 10 Amended Petition (ECF No. 265), pp. 118-20. 11 Respondents do not argue that Ground 3H is barred by the statute of limitations. 12 See Motion to Dismiss (ECF No. 277), p. 21. Ground 3H of Doyle’s second amended 13 petition arises from the same core of operative facts as Ground 5(3) of his original petition, 14 and it therefore relates back to the filing of the original petition. See Petition for Writ of 15 Habeas Corpus (ECF No. 4), p. 8. Ground 3H is not barred by the statute of limitations. 16 17 18 19 Nor do respondents argue that Ground 3H is unexhausted or barred by the procedural default doctrine. See Motion to Dismiss (ECF No. 277), p. 31. Respondents’ motion to dismiss will be denied with respect to Ground 3H. Ground 3I 20 In Ground 3I of his second amended petition, Doyle claims that his trial counsel 21 were ineffective, in violation of his federal constitutional rights, “for failing to object to 22 prejudicial and multiple enlarged photographs of the victim.” Second Amended Petition 23 (ECF No. 265), pp. 120-21. 24 Respondents do not argue that Ground 3I is barred by the statute of limitations. 25 See Motion to Dismiss (ECF No. 277), p. 21. Ground 3I of Doyle’s second amended 26 petition arises from the same core of operative facts as Ground 5(4) of his original petition, 27 and it therefore relates back to the filing of the original petition. See Petition for Writ of 28 Habeas Corpus (ECF No. 4), p. 8. Ground 3I is not barred by the statute of limitations. 33 1 2 3 4 Nor do respondents argue that Ground 3I is unexhausted or barred by the procedural default doctrine. See Motion to Dismiss (ECF No. 277), p. 31. Respondents’ motion to dismiss will be denied with respect to Ground 3I. Ground 3J 5 In Ground 3J of Doyle’s second amended petition, he claims that his trial counsel 6 were ineffective, in violation of his federal constitutional rights, for failing “to present 7 evidence impeaching Michael Smith’s testimony.” Second Amended Petition (ECF No. 8 265), pp. 121-23. 9 Respondents argue that Ground 3J is barred by the statute of limitations. In 10 response, in part, Doyle argues that Ground 3J relates back, because in the supplemental 11 claims in the documents attached to his original petition, Doyle claimed: “Michael Smith 12 told Officer Moviglia and others that he would do anything to get a deal.” See Opposition 13 to Motion to Dismiss (ECF No. 284), pp. 25-28. That claim shares a common core of 14 operative fact with Ground 3J of Doyle’s second amended petition: the alleged 15 unreliability of Michael Smith’s testimony. Ground 3J relates back to the filing of Doyle’s 16 original petition, and is not barred by the statute of limitations. 17 Respondents also argue that Ground 3J is unexhausted in state court. See Motion 18 to Dismiss (ECF No. 277), pp. 32-33. In response, Doyle argues that he did raise the 19 claim in Ground 3J in his second state habeas action, and the Nevada courts declined to 20 rule on the claim in that action, on the ground of law of the case, meaning that the claim 21 must have been asserted and ruled upon on its merits previously in state court. See 22 Opposition to Motion to Dismiss (ECF No. 284), pp. 64-66. As support for this argument, 23 Doyle points to passages in his petition in his second state habeas action where he claims 24 ineffective assistance of counsel on account of counsel’s failure to conduct a thorough, 25 independent, and complete investigation of easily obtainable impeachment evidence, and 26 he points to passages in other claims in the petition in which the reliability of Michael 27 Smith’s testimony is questioned. See id. Those allegations, however, did not fairly inform 28 the state courts that Doyle intended to assert a claim like that in Ground 3J. Doyle did not 34 1 fairly present the factual bases for the ineffective assistance of counsel claim in Ground 2 3J to the state courts, in his second state habeas action, such as to give those courts an 3 opportunity to rule on that claim. The ineffective assistance of counsel claim in Ground 3J 4 is unexhausted in state court. As is discussed above, the anticipatory default doctrine 5 applies, and the Court considers the claims of ineffective assistance of counsel in Ground 6 3J to be technically exhausted, but procedurally defaulted. Inadequate assistance of 7 counsel in a first state habeas action may establish cause for the procedural default of a 8 claim of ineffective assistance of trial counsel. See Martinez, 566 U.S. at 9. This rule may 9 provide a means for Doyle to overcome the procedural default of the ineffective 10 assistance of trial counsel claim in Ground 3J. However, this issue is intertwined with the 11 merits of Ground 3J, such that it will be better addressed in conjunction with the merits of 12 the claim. 13 The Court will, therefore, deny respondents’ motion to dismiss with respect to 14 Ground 3J, without prejudice to respondents asserting the anticipatory procedural default 15 defense to that claim in their answer. 16 Ground 3K 17 In Ground 3K of his second amended petition, Doyle claims that his trial counsel 18 were ineffective, in violation of his federal constitutional rights, “for failing to request an 19 instruction for the lesser-included offense of second-degree kidnapping.” Second 20 Amended Petition (ECF No. 265), pp. 123-24. 21 Respondents argue that Ground 3K is barred by the statute of limitations. Doyle 22 makes no argument that Ground 3K relates back to his original petition, or any other 23 argument that Ground 3K, specifically, is timely. There is no claim in Doyle’s original 24 petition that arises from the same core of operative facts as Ground 3K. See Petition for 25 Writ of Habeas Corpus (ECF No. 4). Ground 3K does not relate back to the filing of 26 Doyle’s original petition, and is barred by the statute of limitations. 27 Respondents also argue that Ground 3K is unexhausted in state court. See Motion 28 to Dismiss (ECF No. 277), p. 33. Doyle makes no responsive argument that Ground 3K 35 1 is exhausted; instead, Doyle concedes that Ground 3K was not presented in state court. 2 See Opposition to Motion to Dismiss (ECF No. 284), pp. 85-88. As is discussed above, 3 the anticipatory default doctrine applies, and the Court considers the claims of ineffective 4 assistance of counsel in Ground 3K to be technically exhausted, but procedurally 5 defaulted. Inadequate assistance of counsel in a first state habeas action may establish 6 cause for the procedural default of a claim of ineffective assistance of trial counsel. See 7 Martinez, 566 U.S. at 9. This rule may provide a means for Doyle to overcome the 8 procedural default of the ineffective assistance of trial counsel claim in Ground 3J. 9 However, this issue is intertwined with the merits of Ground 3J, such that it will be better 10 addressed in conjunction with the merits of the claim. Therefore, the Court does not reach 11 the question whether this claim is barred by the procedural default doctrine. 12 13 Ground 3K will be dismissed as barred by the statute of limitations. Ground 4 14 In Ground 4 of his second amended habeas petition, Doyle claims that his federal 15 constitutional rights were violated because “the prosecutor introduced statements made 16 by Mr. Doyle’s codefendant without affording Mr. Doyle the opportunity to cross-examine 17 ….” Second Amended Petition (ECF No. 265), pp. 125-27. 18 Respondents argue that Ground 4 is barred by the statute of limitations. Doyle 19 makes no argument that Ground 4 relates back to his original petition, or any other 20 argument that Ground 4, specifically, is timely. There is no claim in Doyle’s original petition 21 that arises from the same core of operative facts as Ground 4. See Petition for Writ of 22 Habeas Corpus (ECF No. 4). Ground 4 does not relate back to the filing of Doyle’s original 23 petition, and is barred by the statute of limitations. 24 Respondents also argue that Ground 4 is procedurally defaulted. See Motion to 25 Dismiss (ECF No. 277), pp. 31-32. With respect to part of Ground 4 – all except the claim 26 of ineffective assistance of trial counsel – Doyle offers no argument, specific to Ground 27 4, to overcome the procedural default. With respect to the claim of ineffective assistance 28 of trial counsel in Ground 4, inadequate assistance of counsel in a first state habeas action 36 1 may establish cause for the procedural default of such a claim. See Martinez, 566 U.S. 2 at 9. This could provide a means for Doyle to overcome the procedural default of the 3 ineffective assistance of trial counsel claim in Ground 4. However, this issue is intertwined 4 with the question of the merits of Ground 4, and the briefing of the merits of the claim is 5 not complete. Therefore, the Court does not reach the question of the procedural default 6 of the ineffective assistance of trial counsel claim in Ground 4. 7 All of Ground 4, except the claim of ineffective assistance of trial counsel, will be 8 dismissed as barred by both the statute of limitations and the procedural default doctrine. 9 The claim of ineffective assistance of trial counsel in Ground 4 will be dismissed as barred 10 by the statute of limitations. Ground 5 11 12 In Ground 5 of his second amended petition, Doyle claims that his federal 13 constitutional rights were violated “because of the admission of impermissible and unduly 14 prejudicial victim-impact evidence.” Second Amended Petition (ECF No. 265), pp. 128- 15 37. 16 Respondents argue that Ground 5 is barred by the statute of limitations. Doyle 17 makes no argument that Ground 5 relates back to his original petition, or any other 18 argument that Ground 5, specifically, is timely. There is no claim in Doyle’s original petition 19 that arises from the same core of operative facts as Ground 5. See Petition for Writ of 20 Habeas Corpus (ECF No. 4). Ground 5 does not relate back to the filing of Doyle’s original 21 petition, and is barred by the statute of limitations. 22 Respondents also argue that Ground 5 is barred by the procedural default doctrine. 23 See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle responds, arguing that the 24 Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 25 mandatory review under NRS § 177.055, and, therefore, is not procedurally defaulted. 26 See Opposition to Motion to Dismiss (ECF No. 287), pp. 80-81. Specifically, Doyle points 27 out that, under NRS § 177.055, the Nevada Supreme Court was required to determine 28 whether the death sentence was “imposed under the influence of passion, prejudice or 37 1 any arbitrary factor.” See id. The Court determines, however, that Doyle has not shown 2 that the claim at issue here was “clearly encompassed” within the scope of NRS § 177.055 3 and readily apparent in the record reviewed by the Nevada Supreme Court. Ground 5 4 was not exhausted on Doyle’s direct appeal, or in his first state habeas action, and, as a 5 result, is procedurally defaulted. 6 7 Ground 5 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 6A1 8 9 In Ground 6A1 of his second amended petition, Doyle claims that his federal 10 constitutional rights were violated as a result of prosecutorial misconduct because “[t]he 11 prosecutor improperly argued about mercy.” Second Amended Petition (ECF No. 265), 12 p. 139. 13 Respondents argue that Ground 6A1 is barred by the statute of limitations. Doyle 14 makes no argument that Ground 6A1 relates back to his original petition, or any other 15 argument that Ground 6A1, specifically, is timely. There is no claim in Doyle’s original 16 petition that arises from the same core of operative facts as Ground 6A1. See Petition for 17 Writ of Habeas Corpus (ECF No. 4). Ground 6A1 does not relate back to the filing of 18 Doyle’s original petition, and is barred by the statute of limitations. 19 Respondents also argue that Ground 6A1 is barred by the procedural default 20 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 21 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 22 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 23 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 24 however, that Doyle has not shown that this claim was “clearly encompassed” within the 25 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 26 Supreme Court. Ground 6A1 was not exhausted on Doyle’s direct appeal, or in his first 27 state habeas action, and is subject to the procedural default doctrine. With respect to the 28 claim of ineffective assistance of trial counsel in Ground 6A1, inadequate assistance of 38 1 counsel in a first state habeas action may establish cause for the procedural default of 2 such a claim. See Martinez, 566 U.S. at 9. This could provide a means for Doyle to 3 overcome the procedural default of the ineffective assistance of trial counsel claim in 4 Ground 6A1. However, this issue is intertwined with the question of the merits of Ground 5 6A1, and the briefing of the merits of the claim is not complete. Therefore, the Court does 6 not reach the question of the procedural default of the claim of ineffective assistance of 7 trial counsel in Ground 6A1. 8 All of Ground 6A1, except the claim of ineffective assistance of trial counsel, will 9 be dismissed as barred by both the statute of limitations and the procedural default 10 doctrine. The claim of ineffective assistance of trial counsel in Ground 6A1 will be 11 dismissed as barred by the statute of limitations. 12 Ground 6A2 13 In Ground 6A2 of his second amended petition, Doyle claims that his federal 14 constitutional rights were violated as a result of prosecutorial misconduct because “[t]he 15 prosecutor misled the jury about life with parole sentencing.” Second Amended Petition 16 (ECF No. 265), pp. 140-41. 17 Respondents argue that Ground 6A2 is barred by the statute of limitations. Doyle 18 makes no argument that Ground 6A2 relates back to his original petition, or any other 19 argument that Ground 6A2, specifically, is timely. There is no claim in Doyle’s original 20 petition that arises from the same core of operative facts as Ground 6A2. See Petition for 21 Writ of Habeas Corpus (ECF No. 4). Ground 6A2 does not relate back to the filing of 22 Doyle’s original petition. Ground 6A2 is barred by the statute of limitations. 23 Respondents also argue that Ground 6A2 is barred by the procedural default 24 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 25 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 26 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 27 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 28 however, that Doyle has not shown that this claim was “clearly encompassed” within the 39 1 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 2 Supreme Court. Ground 6A2 was not exhausted on Doyle’s direct appeal, or in his first 3 state habeas action, and is subject to the procedural default doctrine. Therefore, part of 4 Ground 6A2 – all except the claim of ineffective assistance of trial counsel – is subject to 5 dismissal as procedurally defaulted. With respect to the claim of ineffective assistance of 6 trial counsel in Ground 6A2, inadequate assistance of counsel in a first state habeas 7 action may establish cause for the procedural default of such a claim. See Martinez, 566 8 U.S. at 9. This could provide a means for Doyle to overcome the procedural default of the 9 ineffective assistance of trial counsel claim in Ground 6A2. However, that issue is 10 intertwined with the question of the merits of Ground 6A2, and the briefing of the merits 11 of the claim is not complete. Therefore, the Court does not reach the question of the 12 procedural default of the claim of ineffective assistance of trial counsel in Ground 6A2. 13 All of Ground 6A2, except the claim of ineffective assistance of trial counsel, will 14 be dismissed as barred by both the statute of limitations and the procedural default 15 doctrine. The claim of ineffective assistance of trial counsel in Ground 6A2 will be 16 dismissed as barred by the statute of limitations. Ground 6A3 17 18 In Ground 6A3 of his second amended petition, Doyle claims that his federal 19 constitutional rights were violated as a result of prosecutorial misconduct because “[t]he 20 prosecutor mislead the jury about mitigation.” Second Amended Petition (ECF No. 265), 21 pp. 141-42. 22 Respondents argue that Ground 6A3 is barred by the statute of limitations. Doyle 23 makes no argument that Ground 6A3 relates back to his original petition, or any other 24 argument that Ground 6A3, specifically, is timely. There is no claim in Doyle’s original 25 petition that arises from the same core of operative facts as Ground 6A3. See Petition for 26 Writ of Habeas Corpus (ECF No. 4). Ground 6A3 does not relate back to the filing of 27 Doyle’s original petition, and is barred by the statute of limitations. 28 40 1 Respondents also argue that Ground 6A3 is barred by the procedural default 2 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 3 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 4 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 5 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 6 however, that Doyle has not shown that this claim was “clearly encompassed” within the 7 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 8 Supreme Court. Ground 6A3 was not exhausted on Doyle’s direct appeal, or in his first 9 state habeas action, and is subject to the procedural default doctrine. Therefore, part of 10 Ground 6A3 – all except the claim of ineffective assistance of trial counsel – is subject to 11 dismissal as procedurally defaulted. With respect to the claim of ineffective assistance of 12 trial counsel in Ground 6A3, inadequate assistance of counsel in a first state habeas 13 action may establish cause for the procedural default of such a claim. See Martinez, 566 14 U.S. at 9. This could provide a means for Doyle to overcome the procedural default of the 15 ineffective assistance of trial counsel claim in Ground 6A3. However, that issue is 16 intertwined with the question of the merits of Ground 6A3, and the briefing of the merits 17 of the claim is not complete. Therefore, the Court does not reach the question of the 18 procedural default of the claim of ineffective assistance of trial counsel in Ground 6A3. 19 All of Ground 6A3, except the claim of ineffective assistance of trial counsel, will 20 be dismissed as barred by both the statute of limitations and the procedural default 21 doctrine. The claim of ineffective assistance of trial counsel in Ground 6A3 will be 22 dismissed as barred by the statute of limitations. 23 Ground 6A4 24 In Ground 6A4 of his second amended petition, Doyle claims that his federal 25 constitutional rights were violated as a result of prosecutorial misconduct because “[t]he 26 prosecutor improperly expressed his opinion about the propriety of the death penalty.” 27 Second Amended Petition (ECF No. 265), p. 142. 28 41 1 Respondents argue that Ground 6A4 is barred by the statute of limitations. Doyle 2 makes no argument that Ground 6A4 relates back to his original petition, or any other 3 argument that Ground 6A4, specifically, is timely. There is no claim in Doyle’s original 4 petition that arises from the same core of operative facts as Ground 6A4. See Petition for 5 Writ of Habeas Corpus (ECF No. 4). Ground 6A4 does not relate back to the filing of 6 Doyle’s original petition. Ground 6A4 is barred by the statute of limitations. 7 Respondents also argue that Ground 6A4 is barred by the procedural default 8 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 9 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 10 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 11 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 12 however, that Doyle has not shown that this claim was “clearly encompassed” within the 13 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 14 Supreme Court. Ground 6A4 was not exhausted on Doyle’s direct appeal, or in his first 15 state habeas action, and is subject to the procedural default doctrine. Therefore, part of 16 Ground 6A4 – all except the claim of ineffective assistance of trial counsel – is subject to 17 dismissal as procedurally defaulted. With respect to the claim of ineffective assistance of 18 trial counsel in Ground 6A4, inadequate assistance of counsel in a first state habeas 19 action may establish cause for the procedural default of such a claim. See Martinez, 566 20 U.S. at 9. This could provide a means for Doyle to overcome the procedural default of the 21 ineffective assistance of trial counsel claim in Ground 6A4. However, that issue is 22 intertwined with the question of the merits of Ground 6A4, and the briefing of the merits 23 of the claim is not complete. Therefore, the Court does not reach the question of the 24 procedural default of the claim of ineffective assistance of trial counsel in Ground 6A4. 25 All of Ground 6A4, except the claim of ineffective assistance of trial counsel, will 26 be dismissed as barred by both the statute of limitations and the procedural default 27 doctrine. The claim of ineffective assistance of trial counsel in Ground 6A4 will be 28 dismissed as barred by the statute of limitations. 42 1 Ground 6A5 2 In Ground 6A5 of his second amended petition, Doyle claims that his federal 3 constitutional rights were violated as a result of prosecutorial misconduct because “[t]he 4 prosecutor scared the jury into sentencing Mr. Doyle to death.” Second Amended Petition 5 (ECF No. 265), p. 143. 6 Respondents argue that Ground 6A5 is barred by the statute of limitations. Doyle 7 makes no argument that Ground 6A5 relates back to his original petition, or any other 8 argument that Ground 6A5, specifically, is timely. There is no claim in Doyle’s original 9 petition that arises from the same core of operative facts as Ground 6A5. See Petition for 10 Writ of Habeas Corpus (ECF No. 4). Ground 6A5 does not relate back to the filing of 11 Doyle’s original petition, and is barred by the statute of limitations. 12 Respondents also argue that Ground 6A5 is barred by the procedural default 13 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 14 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 15 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 16 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 17 however, that Doyle has not shown that this claim was “clearly encompassed” within the 18 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 19 Supreme Court. Ground 6A5 was not exhausted on Doyle’s direct appeal, or in his first 20 state habeas action, and is subject to the procedural default doctrine. Therefore, part of 21 Ground 6A5 – all except the claim of ineffective assistance of trial counsel – is subject to 22 dismissal as procedurally defaulted. With respect to the claim of ineffective assistance of 23 trial counsel in Ground 6A5, inadequate assistance of counsel in a first state habeas 24 action may establish cause for the procedural default of such a claim. See Martinez, 566 25 U.S. at 9. This could provide a means for Doyle to overcome the procedural default of the 26 ineffective assistance of trial counsel claim in Ground 6A5. However, that issue is 27 intertwined with the question of the merits of Ground 6A5, and the briefing of the merits 28 43 1 of the claim is not complete. Therefore, the Court does not reach the question of the 2 procedural default of the claim of ineffective assistance of trial counsel in Ground 6A5. 3 All of Ground 6A5, except the claim of ineffective assistance of trial counsel, will 4 be dismissed as barred by both the statute of limitations and the procedural default 5 doctrine. The claim of ineffective assistance of trial counsel in Ground 6A5 will be 6 dismissed as barred by the statute of limitations. 7 Ground 6A6 8 In Ground 6A6 of his second amended petition, Doyle claims that his federal 9 constitutional rights were violated as a result of prosecutorial misconduct because “[t]he 10 prosecutor improperly equated the death penalty with self-defense.” Second Amended 11 Petition (ECF No. 265), p. 144. 12 Respondents argue that Ground 6A6 is barred by the statute of limitations. Doyle 13 makes no argument that Ground 6A6 relates back to his original petition, or any other 14 argument that Ground 6A6, specifically, is timely. There is no claim in Doyle’s original 15 petition that arises from the same core of operative facts as Ground 6A6. See Petition for 16 Writ of Habeas Corpus (ECF No. 4). Ground 6A6 does not relate back to the filing of 17 Doyle’s original petition, and is barred by the statute of limitations. 18 Respondents also argue that Ground 6A6 is barred by the procedural default 19 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 20 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 21 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 22 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 23 however, that Doyle has not shown that this claim was “clearly encompassed” within the 24 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 25 Supreme Court. Ground 6A6 was not exhausted on Doyle’s direct appeal, or in his first 26 state habeas action, and is subject to the procedural default doctrine. Therefore, part of 27 Ground 6A6 – all except the claim of ineffective assistance of trial counsel – is subject to 28 dismissal as procedurally defaulted. With respect to the claim of ineffective assistance of 44 1 trial counsel in Ground 6A6, inadequate assistance of counsel in a first state habeas 2 action may establish cause for the procedural default of such a claim. See Martinez, 566 3 U.S. at 9. This could provide a means for Doyle to overcome the procedural default of the 4 ineffective assistance of trial counsel claim in Ground 6A6. However, that issue is 5 intertwined with the question of the merits of Ground 6A6, and the briefing of the merits 6 of the claim is not complete. Therefore, the Court does not reach the question of the 7 procedural default of the claim of ineffective assistance of trial counsel in Ground 6A6. 8 All of Ground 6A6, except the claim of ineffective assistance of trial counsel, will 9 be dismissed as barred by both the statute of limitations and the procedural default 10 doctrine. The claim of ineffective assistance of trial counsel in Ground 6A6 will be 11 dismissed as barred by the statute of limitations. 12 Ground 6A7 13 In Ground 6A7 of his second amended petition, Doyle claims that his federal 14 constitutional rights were violated as a result of prosecutorial misconduct because “[t]he 15 prosecutor misled the jury about Mr. Doyle’s involvement in a drive-by shooting.” Second 16 Amended Petition (ECF No. 265), pp. 144-45. 17 Respondents argue that Ground 6A7 is barred by the statute of limitations. There 18 is no claim in Doyle’s original petition that arises from the same core of operative facts. 19 See Petition for Writ of Habeas Corpus (ECF No. 4). Ground 6A7 does not relate back to 20 the filing of Doyle’s original petition. Doyle argues, however, that Ground 6A7 is timely 21 because the factual predicate of the claim could not previously “have been discovered 22 through the exercise of due diligence.” See Opposition to Motion to Dismiss (ECF No. 23 284), pp. 28-29; see also 28 U.S.C. § 2244(d)(1)(D). Doyle’s argument is without merit. 24 The point of Ground 6A7 is that the subject argument of the prosecutor was not supported 25 by evidence presented by the prosecution at trial. See Second Amended Petition (ECF 26 No. 265), p. 144. The only evidence cited in Ground 6A7, in support of the claim, is trial 27 testimony. The factual predicate of the claim was apparent at trial. 28 U.S.C. § 28 45 1 2244(d)(1)(D) does not save Ground 6A7 from the operation of the statute of limitations. 2 Ground 6A7 is barred by the statute of limitations. 3 Respondents also argue that Ground 6A7 is barred by the procedural default 4 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 5 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 6 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 7 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 8 however, that Doyle has not shown that this claim was “clearly encompassed” within the 9 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 10 Supreme Court. Ground 6A7 was not exhausted on Doyle’s direct appeal, or in his first 11 state habeas action, and is subject to the procedural default doctrine. Doyle also argues, 12 however, that he can overcome the procedural default of Ground 6A7 by showing cause 13 and prejudice on account of the State’s suppression of evidence, and also, with respect 14 to the claim of ineffective assistance of trial counsel in Ground 6A7, on account of 15 ineffective assistance of counsel in his first state habeas action. See Martinez, 566 U.S. 16 at 9; Strickler v. Greene, 527 U.S. 263, 282 (1999). Those issues are intertwined with the 17 question of the merits of the claim, which has not yet been fully briefed. Therefore, the 18 Court does not reach the question whether this claim is barred by the procedural default 19 doctrine. Ground 6A7 will be dismissed as barred by the statute of limitations. 20 Ground 6A8 21 22 In Ground 6A8, Doyle claims that his federal constitutional rights were violated as 23 a result of prosecutorial misconduct because “[t]he prosecutor misrepresented the 24 testimony of Gary and Maria Mason.” Second Amended Petition (ECF No. 265), pp. 145- 25 47. 26 Respondents argue that Ground 6A8 is barred by the statute of limitations. There 27 is no claim in Doyle’s original petition that arises from the same core of operative facts. 28 See Petition for Writ of Habeas Corpus (ECF No. 4). Ground 6A8 does not relate back to 46 1 the filing of Doyle’s original petition. Doyle argues, however, that Ground 6A8 is timely 2 because the factual predicate of the claim could not previously “have been discovered 3 through the exercise of due diligence.” See Opposition to Motion to Dismiss (ECF No. 4 284), pp. 29-31; see also 28 U.S.C. § 2244(d)(1)(D). Specifically, Doyle argues that his 5 claim is based on a document – a report of an arrest of Ebony Mason – that he obtained 6 in discovery in this case on February 6, 2008. See Opposition to Motion to Dismiss (ECF 7 No. 284), pp. 30-31. Doyle included this claim in his first amended petition, which was 8 filed about three months later, on May 14, 2008. See First Amended Petition (ECF No. 9 168), pp. 119-21. There is no indication that Doyle could have discovered this document 10 earlier through the exercise of due diligence. The Court determines that Ground 6A8 was 11 timely asserted in Doyle’s first amended petition, and is not barred by the statute of 12 limitations. 13 Respondents also argue that Ground 6A8 is barred by the procedural default 14 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 15 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 16 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 17 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 18 however, that Doyle has not shown that this claim was “clearly encompassed” within the 19 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 20 Supreme Court. Ground 6A8 was not exhausted on Doyle’s direct appeal, or in his first 21 state habeas action. Therefore, part of Ground 6A8 – all except the claim of ineffective 22 assistance of trial counsel – is subject to dismissal as procedurally defaulted. With respect 23 to the claim of ineffective assistance of trial counsel in Ground 6A8, inadequate 24 assistance of counsel in a first state habeas action may establish cause for the procedural 25 default of such a claim. See Martinez, 566 U.S. at 9. This could provide a means for Doyle 26 to overcome the procedural default of the ineffective assistance of trial counsel claim in 27 Ground 6A8. However, this issue is intertwined with the question of the merits of Ground 28 6A8, and the briefing of the merits of the claim is not complete. 47 1 Therefore, all of Ground 6A8, except the claim of ineffective assistance of trial 2 counsel, will be dismissed as barred by the procedural default doctrine. The Court will 3 deny the motion to dismiss with respect to the ineffective assistance of trial counsel claim 4 in Ground 6A8, without prejudice to respondents asserting the procedural default defense 5 in their answer. 6 Ground 7 7 In Ground 7 of his second amended petition, Doyle claims that his federal 8 constitutional rights were violated “because the prosecutors failed to disclose material 9 evidence under Brady v. Maryland, and knowingly presented false testimony in violation 10 of Napue v. Illinois. Second Amended Petition (ECF No. 265), pp. 148-69; see also Brady 11 v. Maryland, 373 U.S. 83 (1963). 12 Respondents argue that Ground 7 is barred by the statute of limitations. There is 13 no claim in Doyle’s original petition that arises from the same core of operative facts. See 14 Petition for Writ of Habeas Corpus (ECF No. 4). Ground 7 does not relate back to the 15 filing of Doyle’s original petition. Doyle argues that Ground 7 is timely because the factual 16 predicate of the claim could not previously “have been discovered through the exercise 17 of due diligence.” See Opposition to Motion to Dismiss (ECF No. 284), pp. 19-22; see 18 also 28 U.S.C. § 2244(d)(1)(D). Doyle states that he discovered the factual predicate of 19 the claim through discovery and investigation done in this case between 2000 and 2004. 20 See Opposition to Motion to Dismiss (ECF No. 284), p. 33. That, however, was more than 21 three years before Doyle filed his first amended petition; Doyle’s argument does not 22 account for that delay. 28 U.S.C. § 2244(d)(1)(D) does not save Ground 7 from the 23 operation of the statute of limitations. Ground 7 is barred by the statute of limitations. 24 Respondents also argue that Ground 6A8 is barred by the procedural default 25 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle argues that he can 26 overcome the procedural default of Ground 7 by showing cause and prejudice on account 27 of the State’s suppression of evidence, and also, with respect to the claim of ineffective 28 assistance of trial counsel in Ground 7, on account of ineffective assistance of counsel in 48 1 his first state habeas action. See Martinez, 566 U.S. at 9; Strickler, 527 U.S. at 282. Those 2 issues, however, are intertwined with the question of the merits of the claim, which has 3 not yet been fully briefed. Therefore, the Court does not reach the question whether this 4 claim is barred by the procedural default doctrine. 5 6 Ground 7 will be dismissed as barred by the statute of limitations. Ground 8E1 7 In Ground 8E1 of his second amended petition, Doyle claims that his federal 8 constitutional rights were violated because “Mr. Doyle cannot be guilty of both first-degree 9 kidnapping predicated on murder and first-degree murder predicated on kidnapping.” 10 Second Amended Petition (ECF No. 265), pp. 176-79. 11 Respondents argue that Ground 8E1 is barred by the statute of limitations because 12 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 13 8E1 relates back to his original petition, or any other argument that Ground 8E1, 14 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 15 same core of operative facts as Ground 8E1. See Petition for Writ of Habeas Corpus 16 (ECF No. 4). Ground 8E1 does not relate back to the filing of Doyle’s original petition. 17 Ground 8E1 is barred by the statute of limitations. 18 Respondents also argue that Ground 8E1 is unexhausted in state court. See 19 Motion to Dismiss (ECF No. 277), pp. 34-35. In response, Doyle argues that he did raise 20 the claim in Ground 8E1 in his second state habeas action. See Opposition to Motion to 21 Dismiss (ECF No. 284), pp. 66-68. As support for this argument, Doyle points to passages 22 in Claim 8 of his petition in his second state habeas action, in which he claimed that his 23 federal constitutional rights were violated because the prosecutors used the same acts to 24 support his conviction of murder and to support an aggravating circumstance. See id.; 25 Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 295, pp. 145-49 (ECF No. 26 265-3, pp. 146-50). That claim, however, was different from the claim in Ground 8E1. 27 Doyle did not fairly present the factual or legal bases for the claim in Ground 8E1 to the 28 state courts in his second state habeas action, such as to give those courts an opportunity 49 1 to rule on that claim. Ground 8E1 is unexhausted in state court. As is discussed above, 2 the anticipatory default doctrine applies, and the Court considers Ground 8E1 to be 3 technically exhausted, but procedurally defaulted. Doyle does not make any argument, 4 specific to Ground 8E1, that he can overcome the anticipatory procedural default of that 5 claim. 6 7 8 Ground 8E1 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 8E2 9 In Ground 8E2 of his second amended petition, Doyle claims that his federal 10 constitutional rights were violated because “[t]he invalidity of Mr. Doyle’s sexual assault 11 conviction invalidates his first-degree kidnapping and first-degree murder convictions.” 12 Second Amended Petition (ECF No. 265), pp. 179-83. 13 Respondents argue that Ground 8E2 is barred by the statute of limitations because 14 it does not relate back to Doyle’s original petition. Doyle argues that Ground 8E2 relates 15 back to his original petition because he attached to his original petition a copy of the 16 Nevada Supreme Court’s opinion on his direct appeal, in which that court vacated his 17 sexual assault conviction and “analyzed the connectedness of [his] sexual assault, 18 murder, and kidnapping convictions.” Opposition to Motion to Dismiss (ECF No. 284), pp. 19 35-36. The Court finds this argument to be meritless. There is nothing in Doyle’s original 20 petition indicating that any portion of the Nevada Supreme Court’s opinion was 21 incorporated into that petition to state a claim. Ground 8E2 does not relate back to Doyle’s 22 original petition, and is barred by the statute of limitations. 23 Respondents also argue that Ground 8E2 is unexhausted in state court. See 24 Motion to Dismiss (ECF No. 277), pp. 34-35. In response, Doyle argues that he raised 25 the claim in Ground 8E2 on his direct appeal. See Opposition to Motion to Dismiss (ECF 26 No. 284), pp. 68-69. Doyle points out that on his direct appeal, he argued, successfully, 27 that there was insufficient evidence to support the sexual assault conviction, because the 28 victim may have been dead before the sexual assault occurred; however, Doyle does not 50 1 show that he argued on his direct appeal that, as a matter of federal constitutional law, 2 invalidating the sexual assault conviction necessarily invalidated his kidnapping and 3 murder convictions. On his direct appeal, Doyle did not fairly present the factual or legal 4 bases for the claim in Ground 8E2 to the Nevada Supreme Court, such as to give that 5 court an opportunity to rule on that claim. Ground 8E2 is unexhausted in state court. As 6 is discussed above, the anticipatory default doctrine applies, and the Court considers 7 Ground 8E2 to be technically exhausted, but procedurally defaulted. Doyle does not make 8 any argument, specific to Ground 8E2, that he can overcome the anticipatory procedural 9 default of that claim. 10 11 Ground 8E2 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 8E3 12 13 In Ground 8E3 of his second amended petition, Doyle claims that his federal 14 constitutional rights were violated because “[t]he Nevada Supreme Court improperly 15 reweighed Mr. Doyle’s aggravating and mitigating circumstances after striking the 16 kidnapping aggravating circumstance.” Second Amended Petition (ECF No. 265), pp. 17 183-87. 18 Respondents argue that Ground 8E3 is barred by the statute of limitations because 19 it does not relate back to Doyle’s original petition. Doyle points out, however, that the 20 factual predicate of this claim only arose when the Nevada Supreme Court ruled on the 21 appeal in his second state habeas action. See Opposition to Motion to Dismiss (ECF No. 22 284), pp. 37-38. The Nevada Supreme Court issued that ruling on September 22, 2015, 23 and denied rehearing on December 2, 2015. See Order of Affirmance, Exhibit 304 (ECF 24 No. 266-6); Order Denying Rehearing, Exhibit 306 (ECF No. 266-8). After the United 25 States Supreme Court denied certiorari on May 2, 2016, the Nevada Supreme Court 26 issued its remittitur on May 6, 2016. See Doyle v. Nevada, 136 S.Ct. 1829 (2016); 27 Remittitur, Exhibit 1 to Motion to Vacate Stay (ECF No. 256-1). Doyle filed his second 28 51 1 amended petition in this action less than six months later, on October 28, 2016. Ground 2 8E3 is not barred by the statute of limitations. See 28 U.S.C. § 2244(d)(1)(D). 3 Respondents also argue that Ground 8E3 is barred by the procedural default 4 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle makes no argument, 5 specific to Ground 8E3, to the contrary. There is no showing that Doyle has ever asserted 6 the claim in Ground 8E3 in the state courts, in a manner such that it was not procedurally 7 barred. And, the Court determines that Ground 8E3 would be procedurally barred if Doyle 8 were to return to state court to present that claim. Therefore, the anticipatory default 9 doctrine applies, and the Court considers this claim to be technically exhausted, but 10 procedurally defaulted. Doyle does not make any argument, specific to Ground 8E3, that 11 he can overcome the procedural default of that claim. 12 13 Ground 8E3 will be dismissed as barred by the procedural default doctrine. Ground 9A1 14 In Ground 9A1 of his second amended petition, Doyle claims that his federal 15 constitutional rights were violated, in the guilt phase of his trial, as a result of improper 16 jury instructions, because “[t]he trial court failed to properly instruct the jury as to the 17 elements of first-degree premeditated and deliberate murder.” Second Amended Petition 18 (ECF No. 265), pp. 188-94. 19 Respondents argue that Ground 9A1 is barred by the statute of limitations because 20 it does not relate back to Doyle’s original petition. Doyle argues in response that Ground 21 9A1 relates back to Ground 3 in his original petition. See Opposition to Motion to Dismiss 22 (ECF No. 284), pp. 51-53; Petition for Writ of Habeas Corpus (ECF No. 4), p. 5. In reply, 23 respondents would further parse Ground 9A1, and argue that, to the extent it includes 24 consideration of the felony-murder instruction given at Doyle’s trial, it does not relate back. 25 The Court disagrees; Ground 9A1, in its entirety, deals with the question of the jury 26 instructions’ definition of premeditation, and it relates back to Ground 3 in Doyle’s original 27 petition. Ground 9A1 is not barred by the statute of limitations. 28 52 1 2 3 4 Respondents do not argue that Ground 9A1 is unexhausted or barred by the procedural default doctrine. See Motion to Dismiss (ECF No. 277), p. 31. Respondents’ motion to dismiss will be denied with respect to Ground 9A1. Ground 9A2 5 In Ground 9A2 of his second amended petition, Doyle claims that his federal 6 constitutional rights were violated, in the guilt phase of his trial, as a result of improper 7 jury instructions, because “[t]he trial court’s reasonable doubt instruction was improper.” 8 Second Amended Petition (ECF No. 265), pp. 194-96. 9 Respondents argue that Ground 9A2 is barred by the statute of limitations because 10 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 11 9A2 relates back to his original petition, or any other argument that Ground 9A2, 12 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 13 same core of operative facts as Ground 9A2. See Petition for Writ of Habeas Corpus 14 (ECF No. 4). Ground 9A2 does not relate back to the filing of Doyle’s original petition. 15 Ground 9A2 is barred by the statute of limitations. 16 Respondents also argue that Ground 9A2 is barred by the procedural default 17 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle makes no argument, 18 specific to Ground 9A2, to the contrary. 19 20 21 Ground 9A2 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 9A3 22 In Ground 9A3 of his second amended petition, Doyle claims that his federal 23 constitutional rights were violated, in the guilt phase of his trial, as a result of improper 24 jury instructions, because “[t]he trial court’s malice aforethought instruction was 25 improper.” Second Amended Petition (ECF No. 265), pp. 196-97. 26 It is unclear whether respondents contend, in their motion to dismiss, whether 27 Ground 9A3 is barred by the statute of limitations. See Motion to Dismiss (ECF No. 277), 28 p. 26. And, perhaps as a result of that ambiguity, Doyle did not make any argument in his 53 1 opposition to the motion to dismiss particular to Ground 9A3. At any rate, the Court 2 determines that Ground 9A3 relates back to Ground 4 of Doyle’s original petition, and is 3 not barred by the statute of limitations. 4 5 6 7 Respondents do not argue that Ground 9A3 is unexhausted or barred by the procedural default doctrine. See Motion to Dismiss (ECF No. 277), p. 31. Respondents’ motion to dismiss will be denied with respect to Ground 9A3. Ground 9A4 8 In Ground 9A4 of his second amended petition, Doyle claims that his federal 9 constitutional rights were violated, in the guilt phase of his trial, as a result of improper 10 jury instructions, because “[t]he trial court’s specific intent instruction was improper.” 11 Second Amended Petition (ECF No. 265), pp. 197-200. 12 Respondents argue that Ground 9A4 is barred by the statute of limitations because 13 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 14 9A4 relates back to his original petition, or any other argument that Ground 9A4, 15 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 16 same core of operative facts as Ground 9A4. See Petition for Writ of Habeas Corpus 17 (ECF No. 4). Ground 9A4 does not relate back to the filing of Doyle’s original petition. 18 Ground 9A4 is barred by the statute of limitations. 19 Respondents also argue that Ground 9A4 is barred by the procedural default 20 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle makes no argument, 21 specific to Ground 9A4, to the contrary. 22 23 24 Ground 9A4 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 9A5 25 In Ground 9A5 of his second amended petition, Doyle claims that his federal 26 constitutional rights were violated, in the guilt phase of his trial, as a result of improper 27 jury instructions, because “[t]he trial court’s guilt or innocence instruction was improper.” 28 Second Amended Petition (ECF No. 265), pp. 200-01. 54 1 Respondents argue that Ground 9A5 is barred by the statute of limitations because 2 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 3 9A5 relates back to his original petition, or any other argument that Ground 9A5, 4 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 5 same core of operative facts as Ground 9A5. See Petition for Writ of Habeas Corpus 6 (ECF No. 4). Ground 9A5 does not relate back to the filing of Doyle’s original petition. 7 Ground 9A5 is barred by the statute of limitations. 8 Respondents argue that Ground 9A5 is procedurally defaulted. See Motion to 9 Dismiss (ECF No. 277), p. 31. With respect to all of Ground 9A5, except the claim of 10 ineffective assistance of trial counsel, Doyle offers no argument, specific to Ground 9A5, 11 to overcome the procedural default. With respect to the claim of ineffective assistance of 12 trial counsel in Ground 9A5, inadequate assistance of counsel in a first state habeas 13 action may establish cause for the procedural default of such a claim. See Martinez, 566 14 U.S. at 9. This could provide a means for Doyle to overcome the procedural default of the 15 ineffective assistance of trial counsel claim in Ground 9A5. However, this issue is 16 intertwined with the question of the merits of Ground 9A5, and the briefing of the merits 17 of the claim is not complete. The Court does not reach the question of the procedural 18 default of the claim of ineffective assistance of trial counsel in Ground 9A5. 19 All of Ground 9A5, except the claim of ineffective assistance of trial counsel, will 20 be dismissed as barred by both the statute of limitations and the procedural default 21 doctrine. The claim of ineffective assistance of trial counsel in Ground 9A5 will be 22 dismissed as barred by the statute of limitations. 23 Ground 9A6 24 In Ground 9A6 of his second amended petition, Doyle claims that his federal 25 constitutional rights were violated, in the guilt phase of his trial, as a result of improper 26 jury instructions, because “[t]he kidnapping instructions reduced the state’s burden of 27 proof, allowing the jury to find first-degree kidnapping based merely on second-degree 28 kidnapping.” Second Amended Petition (ECF No. 265), pp. 201-06. 55 1 Respondents argue that Ground 9A6 is barred by the statute of limitations because 2 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 3 9A6 relates back to his original petition, or any other argument that Ground 9A6, 4 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 5 same core of operative facts as Ground 9A6. See Petition for Writ of Habeas Corpus 6 (ECF No. 4). Ground 9A6 does not relate back to the filing of Doyle’s original petition. 7 Ground 9A6 is barred by the statute of limitations. 8 Respondents also argue that Ground 9A6 is unexhausted in state court. See 9 Motion to Dismiss (ECF No. 277), p. 36. Doyle concedes as much. See Opposition to 10 Motion to Dismiss (ECF No. 284), pp. 85-88. As is discussed above, the anticipatory 11 default doctrine applies, and the Court considers Ground 9A6 to be technically exhausted, 12 but procedurally defaulted. Doyle does not make any argument, specific to Ground 9A6, 13 that he can overcome the anticipatory procedural default of that claim. 14 15 16 Ground 9A6 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 9B1 17 In Ground 9B1 of his second amended petition, Doyle claims that his federal 18 constitutional rights were violated, in the penalty phase of his trial, as a result of improper 19 jury instructions, because “[t]he trial court improperly answered the jury’s question 20 regarding comparative culpability.” Second Amended Petition (ECF No. 265), pp. 207-09. 21 Respondents argue that Ground 9B1 is barred by the statute of limitations because 22 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 23 9B1 relates back to his original petition, or any other argument that Ground 9B1, 24 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 25 same core of operative facts as Ground 9B1. See Petition for Writ of Habeas Corpus 26 (ECF No. 4). Ground 9B1 does not relate back to the filing of Doyle’s original petition. 27 Ground 9B1 is barred by the statute of limitations. 28 56 1 Respondents also argue that Ground 9B1 is barred by the procedural default 2 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 3 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 4 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 5 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 6 however, that Doyle has not shown that this claim was “clearly encompassed” within the 7 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 8 Supreme Court. Ground 9B1 was not exhausted on Doyle’s direct appeal, or in his first 9 state habeas action, and is subject to the procedural default doctrine. Doyle makes no 10 other argument, specific to Ground 9B1, that he can overcome the procedural default of 11 that claim. 12 13 14 Ground 9B1 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 9B2 15 In Ground 9B2 of his second amended petition, Doyle claims that his federal 16 constitutional rights were violated, in the penalty phase of his trial, as a result of improper 17 jury instructions, because “[t]he trial court improperly failed to give the presumption of life 18 instruction.” Second Amended Petition (ECF No. 265), pp. 209-11. 19 Respondents argue that Ground 9B2 is barred by the statute of limitations because 20 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 21 9B2 relates back to his original petition, or any other argument that Ground 9B2, 22 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 23 same core of operative facts as Ground 9B2. See Petition for Writ of Habeas Corpus 24 (ECF No. 4). Ground 9B2 does not relate back to the filing of Doyle’s original petition. 25 Ground 9B2 is barred by the statute of limitations. 26 Respondents also argue that Ground 9B2 is barred by the procedural default 27 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 28 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 57 1 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 2 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 3 however, that Doyle has not shown that this claim was “clearly encompassed” within the 4 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 5 Supreme Court. Ground 9B2 was not exhausted on Doyle’s direct appeal, or in his first 6 state habeas action, and is subject to the procedural default doctrine. Doyle makes no 7 other argument, specific to Ground 9B2, that he can overcome the procedural default of 8 that claim. 9 10 11 Ground 9B2 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 9B3 12 In Ground 9B3 of his second amended petition, Doyle claims that his federal 13 constitutional rights were violated, in the penalty phase of his trial, as a result of improper 14 jury instructions, because “[t]he trial court’s reasonable doubt instruction was improper.” 15 Second Amended Petition (ECF No. 265), p. 211. 16 Respondents argue that Ground 9B3 is barred by the statute of limitations because 17 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 18 9B3 relates back to his original petition, or any other argument that Ground 9B3, 19 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 20 same core of operative facts as Ground 9B3. See Petition for Writ of Habeas Corpus 21 (ECF No. 4). Ground 9B3 does not relate back to the filing of Doyle’s original petition. 22 Ground 9B3 is barred by the statute of limitations. 23 Respondents also argue that Ground 9B3 is barred by the procedural default 24 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 25 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 26 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 27 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 28 however, that Doyle has not shown that this claim was “clearly encompassed” within the 58 1 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 2 Supreme Court. Ground 9B3 was not exhausted on Doyle’s direct appeal, or in his first 3 state habeas action, and is subject to the procedural default doctrine. With respect to all 4 of Ground 9B3, except the claim of ineffective assistance of trial counsel, Doyle offers no 5 argument, specific to Ground 9B3, to overcome the procedural default. With respect to 6 the claim of ineffective assistance of trial counsel in Ground 9B3, inadequate assistance 7 of counsel in a first state habeas action may establish cause for the procedural default of 8 such a claim. See Martinez, 566 U.S. at 9. This could provide a means for Doyle to 9 overcome the procedural default of the ineffective assistance of trial counsel claim in 10 Ground 9B3. However, this issue is intertwined with the question of the merits of Ground 11 9B3, and the briefing of the merits of the claim is not complete. Therefore, the Court does 12 not reach the question of the procedural default of the claim of ineffective assistance of 13 trial counsel in Ground 9B3. 14 All of Ground 9B3, except the claim of ineffective assistance of trial counsel, will 15 be dismissed as barred by both the statute of limitations and the procedural default 16 doctrine. The claim of ineffective assistance of trial counsel in Ground 9B3 will be 17 dismissed as barred by the statute of limitations. 18 Ground 9B4 19 In Ground 9B4 of his second amended petition, Doyle claims that his federal 20 constitutional rights were violated, in the penalty phase of his trial, as a result of improper 21 jury instructions, because “[t]he trial court’s Edmund instruction was improper.” Second 22 Amended Petition (ECF No. 265), pp. 211-13. 23 Respondents argue that Ground 9B4 is barred by the statute of limitations because 24 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 25 9B4 relates back to his original petition, or any other argument that Ground 9B4, 26 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 27 same core of operative facts as Ground 9B4. See Petition for Writ of Habeas Corpus 28 59 1 (ECF No. 4). Ground 9B4 does not relate back to the filing of Doyle’s original petition. 2 Ground 9B4 is barred by the statute of limitations. 3 Respondents also argue that Ground 9B4 is barred by the procedural default 4 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. In response, Doyle argues 5 that the Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 6 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 7 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 8 however, that Doyle has not shown that this claim was “clearly encompassed” within the 9 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 10 Supreme Court. Ground 9B4 was not exhausted on Doyle’s direct appeal, or in his first 11 state habeas action, and is subject to the procedural default doctrine. With respect to all 12 of Ground 9B4, except the claim of ineffective assistance of trial counsel, Doyle offers no 13 argument, specific to Ground 9B4, to overcome the procedural default. With respect to 14 the claim of ineffective assistance of trial counsel in Ground 9B4, inadequate assistance 15 of counsel in a first state habeas action may establish cause for the procedural default of 16 such a claim. See Martinez, 566 U.S. at 9. This could provide a means for Doyle to 17 overcome the procedural default of the ineffective assistance of trial counsel claim in 18 Ground 9B4. However, this issue is intertwined with the question of the merits of Ground 19 9B4, and the briefing of the merits of the claim is not complete. Therefore, the Court does 20 not reach the question of the procedural default of the claim of ineffective assistance of 21 trial counsel in Ground 9B4. 22 All of Ground 9B4, except the claim of ineffective assistance of trial counsel, will 23 be dismissed as barred by both the statute of limitations and the procedural default 24 doctrine. The claim of ineffective assistance of trial counsel in Ground 9B4 will be 25 dismissed as barred by the statute of limitations. 26 Ground 9B5 27 In Ground 9B5 of his second amended petition, Doyle claims that his federal 28 constitutional rights were violated, in the penalty phase of his trial, as a result of improper 60 1 jury instructions, because “[t]he trial court improperly failed [to] instruct the jury to find 2 mitigating circumstances did not outweigh aggravating circumstances beyond a 3 reasonable doubt.” Second Amended Petition (ECF No. 265), pp. 213-16. 4 Respondents argue that Ground 9B5 is barred by the statute of limitations because 5 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 6 9B5 relates back to his original petition, or any other argument that Ground 9B5, 7 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 8 same core of operative facts as Ground 9B5. See Petition for Writ of Habeas Corpus 9 (ECF No. 4). Ground 9B5 does not relate back to the filing of Doyle’s original petition. 10 Ground 9B5 is barred by the statute of limitations. 11 Respondents also argue that Ground 9B5 is barred by the procedural default 12 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle also argues that the 13 Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 14 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 15 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 16 however, that Doyle has not shown that this claim was “clearly encompassed” within the 17 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 18 Supreme Court. Ground 9B5 was not exhausted on Doyle’s direct appeal, or in his first 19 state habeas action, and is subject to the procedural default doctrine. With respect to all 20 of Ground 9B5, except the claim of ineffective assistance of trial counsel, Doyle offers no 21 argument, specific to Ground 9B5, to overcome the procedural default. With respect to 22 the claim of ineffective assistance of trial counsel in Ground 9B5, inadequate assistance 23 of counsel in a first state habeas action may establish cause for the procedural default of 24 such a claim. See Martinez, 566 U.S. at 9. This could provide a means for Doyle to 25 overcome the procedural default of the ineffective assistance of trial counsel claim in 26 Ground 9B5. However, this issue is intertwined with the question of the merits of Ground 27 9B5, and the briefing of the merits of the claim is not complete. Therefore, the Court does 28 61 1 not reach the question of the procedural default of the claim of ineffective assistance of 2 trial counsel in Ground 9B5. 3 All of Ground 9B5, except the claim of ineffective assistance of trial counsel, will 4 be dismissed as barred by both the statute of limitations and the procedural default 5 doctrine. The claim of ineffective assistance of trial counsel in Ground 9B5 will be 6 dismissed as barred by the statute of limitations. 7 Ground 9B6 8 In Ground 9B6 of his second amended petition, Doyle claims that his federal 9 constitutional rights were violated, in the penalty phase of his trial, as a result of improper 10 jury instructions, because “[t]he trial court improperly failed to give the jury a form to 11 indicate a finding that mitigating circumstances outweighed aggravating circumstances, 12 creating an unconstitutional presumption of death.” Second Amended Petition (ECF No. 13 265), pp. 216-21. 14 Respondents argue that Ground 9B6 is barred by the statute of limitations because 15 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 16 9B6 relates back to his original petition, or any other argument that Ground 9B6, 17 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 18 same core of operative facts as Ground 9B6. See Petition for Writ of Habeas Corpus 19 (ECF No. 4). Ground 9B6 does not relate back to the filing of Doyle’s original petition. 20 Ground 9B6 is barred by the statute of limitations. 21 Respondents also argue that Ground 9B6 is unexhausted in state court. See 22 Motion to Dismiss (ECF No. 277), p. 37. Doyle responds, arguing that the Nevada 23 Supreme Court addressed this claim, on his direct appeal, as part of its mandatory review 24 under NRS § 177.055, and, therefore, it is not unexhausted or procedurally defaulted. 25 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 26 however, that Doyle has not shown that this claim was “clearly encompassed” within the 27 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 28 Supreme Court. Ground 9B6 was not exhausted on Doyle’s direct appeal, or in his first 62 1 state habeas action, and is subject to the procedural default doctrine. With respect to all 2 of Ground 9B6, except the claim of ineffective assistance of trial counsel, Doyle offers no 3 argument, specific to Ground 9B6, to overcome the procedural default. With respect to 4 the claim of ineffective assistance of trial counsel in Ground 9B6, inadequate assistance 5 of counsel in a first state habeas action may establish cause for the procedural default of 6 such a claim. See Martinez, 566 U.S. at 9. This could provide a means for Doyle to 7 overcome the procedural default of the ineffective assistance of trial counsel claim in 8 Ground 9B6. However, this issue is intertwined with the question of the merits of Ground 9 9B6, and the briefing of the merits of the claim is not complete. Therefore, the Court does 10 not reach the question of the procedural default of the claim of ineffective assistance of 11 trial counsel in Ground 9B6. 12 All of Ground 9B6, except the claim of ineffective assistance of trial counsel, will 13 be dismissed as barred by both the statute of limitations and the procedural default 14 doctrine. The claim of ineffective assistance of trial counsel in Ground 9B6 will be 15 dismissed as barred by the statute of limitations. 16 Ground 9B7 17 In Ground 9B7 of his second amended petition, Doyle claims that his federal 18 constitutional rights were violated, in the penalty phase of his trial, as a result of improper 19 jury instructions, because “[t]he trial court’s anti-sympathy instruction was unduly 20 prejudicial.” Second Amended Petition (ECF No. 265), pp. 221-22. 21 Respondents argue that Ground 9B7 is barred by the statute of limitations because 22 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 23 9B7 relates back to his original petition, or any other argument that Ground 9B7, 24 specifically, is timely. There is no claim in Doyle’s original petition that arises from the 25 same core of operative facts as Ground 9B7. See Petition for Writ of Habeas Corpus 26 (ECF No. 4). Ground 9B7 does not relate back to the filing of Doyle’s original petition. 27 Ground 9B7 is barred by the statute of limitations. 28 63 1 Respondents also argue that Ground 9B7 is unexhausted in state court. See 2 Motion to Dismiss (ECF No. 277), p. 37. Doyle responds, arguing that the Nevada 3 Supreme Court addressed this claim, on his direct appeal, as part of its mandatory review 4 under NRS § 177.055, and, therefore, it is not unexhausted or procedurally defaulted. 5 See Opposition to Motion to Dismiss (ECF No. 284), pp. 81-82. The Court determines, 6 however, that Doyle has not shown that this claim was “clearly encompassed” within the 7 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 8 Supreme Court. Ground 9B7 has not been presented in state court, but would be 9 procedurally barred if Doyle were to return to state court to present the claim. Therefore, 10 the anticipatory default doctrine applies, and the Court considers this claim to be 11 technically exhausted, but procedurally defaulted. Doyle offers no argument, specific to 12 Ground 9B7, to overcome the procedural default. 13 14 15 Ground 9B7 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 10 16 In Ground 10 of his second amended petition, Doyle claims that his federal 17 constitutional rights were violated as a result of “the trial court’s failure to record critical 18 proceedings.” Second Amended Petition (ECF No. 265), pp. 223-25. 19 Respondents argue that Ground 10 is barred by the statute of limitations because 20 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 21 10 relates back to his original petition, or any other argument that Ground 10, specifically, 22 is timely. There is no claim in Doyle’s original petition that arises from the same core of 23 operative facts as Ground 10. See Petition for Writ of Habeas Corpus (ECF No. 4). 24 Ground 10 does not relate back to the filing of Doyle’s original petition. Ground 10 is 25 barred by the statute of limitations. 26 Respondents also argue that Ground 10 is barred by the procedural default 27 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. With respect to the claim of 28 ineffective assistance of trial counsel in Ground 10, inadequate assistance of counsel in 64 1 a first state habeas action may establish cause for the procedural default of such a claim. 2 See Martinez, 566 U.S. at 9. This could provide a means for Doyle to overcome the 3 procedural default of the ineffective assistance of trial counsel claim in Ground 10. 4 However, this issue is intertwined with the question of the merits of Ground 10, and the 5 briefing of the merits of the claim is not complete. The Court does not reach the question 6 of the procedural default of the claim of ineffective assistance of trial counsel in Ground 7 10. 8 All of Ground 10, except the claim of ineffective assistance of trial counsel, will be 9 dismissed as barred by both the statute of limitations and the procedural default doctrine. 10 The claim of ineffective assistance of trial counsel in Ground 10 will be dismissed as 11 barred by the statute of limitations. Ground 11 12 13 In Ground 11 of his second amended petition, Doyle claims that his death sentence 14 is invalid, under the federal constitution, because “execution by lethal injection violates 15 the constitutional prohibition against cruel and unusual punishments and his rights under 16 the First and Fourteenth Amendments.” Second Amended Petition (ECF No. 265), pp. 17 226-53. 18 Respondents argue that Ground 11 is barred by the statute of limitations because 19 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 20 11 relates back to his original petition, or any other argument that Ground 11, specifically, 21 is timely. There is no claim in Doyle’s original petition that arises from the same core of 22 operative facts as Ground 11. See Petition for Writ of Habeas Corpus (ECF No. 4). 23 Ground 11 does not relate back to the filing of Doyle’s original petition. Ground 11 is 24 barred by the statute of limitations. 25 Respondents also argue that Ground 11 should be dismissed because it is not ripe 26 for review or cognizable in this action. See Motion to Dismiss (ECF No. 277), p. 39. The 27 Court declines to address these arguments. 28 Ground 11 will be dismissed as barred by the statute of limitations. 65 1 Ground 12 2 In Ground 12 of his second amended petition, Doyle claims that his death sentence 3 is invalid, under the federal constitution, “because his death sentence is the product of 4 purposeful race discrimination by state officials.” Second Amended Petition (ECF No. 5 265), pp. 254-57. 6 Respondents argue that Ground 12 is barred by the statute of limitations because 7 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 8 12 relates back to his original petition, or any other argument that Ground 12, specifically, 9 is timely. There is no claim in Doyle’s original petition that arises from the same core of 10 operative facts as Ground 12. See Petition for Writ of Habeas Corpus (ECF No. 4). 11 Ground 12 does not relate back to the filing of Doyle’s original petition. Ground 12 is 12 barred by the statute of limitations. 13 Respondents also argue that Ground 12 is barred by the procedural default 14 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle argues, in turn, that the 15 Nevada Supreme Court addressed this claim, on his direct appeal, as part of its 16 mandatory review under NRS § 177.055, and, therefore, it is not procedurally defaulted. 17 See Opposition to Motion to Dismiss (ECF No. 284), pp. 83-84. The Court determines, 18 however, that Doyle has not shown that this claim was “clearly encompassed” within the 19 scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 20 Supreme Court. Ground 12 was not exhausted on Doyle’s direct appeal, and is 21 procedurally defaulted. Doyle offers no other argument, specific to Ground 12, to 22 overcome the procedural default. 23 24 25 Ground 12 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 13 26 In Ground 13 of his second amended petition, Doyle claims that his conviction and 27 sentence violate the federal constitution “because Mr. Doyle’s capital trial, sentencing, 28 and review on direct appeal were conducted before state judicial officers whose tenure in 66 1 office was not during good behavior but whose tenure was dependent on popular 2 election.” Second Amended Petition (ECF No. 265), pp. 258-62. 3 Respondents argue that Ground 13 is barred by the statute of limitations because 4 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 5 13 relates back to his original petition, or any other argument that Ground 13, specifically, 6 is timely. There is no claim in Doyle’s original petition that arises from the same core of 7 operative facts as Ground 13. See Petition for Writ of Habeas Corpus (ECF No. 4). 8 Ground 13 does not relate back to the filing of Doyle’s original petition. Ground 13 is 9 barred by the statute of limitations. 10 Respondents also argue that Ground 13 is barred by the procedural default 11 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle makes no argument, 12 specific to Ground 13, to the contrary. 13 14 15 Ground 13 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 14 16 In Ground 14 of his second amended petition, Doyle claims that his death sentence 17 is invalid, under the federal constitution, “because the Nevada capital punishment system 18 operates in an arbitrary and capricious manner.” Second Amended Petition (ECF No. 19 265), pp. 263-71. 20 Respondents argue that Ground 14 is barred by the statute of limitations because 21 it does not relate back to Doyle’s original petition. Doyle responds, arguing first that 22 Ground 14 is based on a constitutional right only recently recognized, in Hurst v. Florida, 23 136 S.Ct. 616 (2016). See Opposition to Motion to Dismiss (ECF No. 284), pp. 54-55. 24 However, that argument is belied by a reading of Ground 14; Ground 14 is not based to 25 any significant degree on Hurst. Doyle also argues that he could not have discovered the 26 factual predicate for Ground 14 any sooner, and he pursued his rights diligently after Hurst 27 was decided and after he discovered the factual predicate of the claim. See id. at 55-56. 28 Those arguments, too, are belied by a reading of Ground 14. It is plain that the factual 67 1 predicate for Ground 14 was discoverable long before 2016 – in fact, Doyle pled a similar 2 claim in his first amended petition in 2008. See Amended Petition for Writ of Habeas 3 Corpus (ECF No. 168), pp. 190-92. Finally, Doyle argues that Ground 14 relates back to 4 the filing of his original habeas petition because he attached to that petition a copy of the 5 Nevada Supreme Court’s opinion on his direct appeal, in which the Nevada Supreme 6 Court stated that Doyle’s death sentence was not imposed “under the influence of … any 7 arbitrary factor.” See Opposition to Motion to Dismiss (ECF No. 284), pp. 56-57. That 8 argument is without merit; there is nothing in Doyle’s original petition indicating that any 9 portion of the Nevada Supreme Court’s opinion was incorporated into that petition to state 10 a claim. Ground 14 does not relate back to Doyle’s original petition, and is barred by the 11 statute of limitations. 12 Respondents also argue that Ground 14 is barred by the procedural default 13 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle argues that the Nevada 14 Supreme Court addressed this claim, on his direct appeal, as part of its mandatory review 15 under NRS § 177.055, and, therefore, it is not procedurally defaulted. See Opposition to 16 Motion to Dismiss (ECF No. 284), pp. 83-84. The Court determines, however, that Doyle 17 has not shown that this claim was “clearly encompassed” within the scope of NRS § 18 177.055 and readily apparent in the record reviewed by the Nevada Supreme Court. 19 Ground 14 was not exhausted on Doyle’s direct appeal, and is procedurally defaulted. 20 Doyle offers no other argument, specific to Ground 14, to overcome the procedural 21 default. 22 23 24 Ground 14 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 15 25 In Ground 15 of his second amended petition, Doyle claims that his death sentence 26 is invalid, under the federal constitution, “due to the restrictive conditions on Nevada’s 27 death row.” Second Amended Petition (ECF No. 265), pp. 272-73. 28 68 1 Respondents argue that Ground 15 is barred by the statute of limitations because 2 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 3 15 relates back to his original petition, or any other argument that Ground 15, specifically, 4 is timely. There is no claim in Doyle’s original petition that arises from the same core of 5 operative facts as Ground 15. See Petition for Writ of Habeas Corpus (ECF No. 4). 6 Ground 15 does not relate back to the filing of Doyle’s original petition. Ground 15 is 7 barred by the statute of limitations. 8 Respondents also argue that Ground 15 is barred by the procedural default 9 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle makes no argument, 10 11 12 13 specific to Ground 15, to the contrary. Ground 15 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 16 14 In Ground 16 of his second amended petition, Doyle claims that his death sentence 15 is invalid, under the federal constitution, “due to the jury finding the statutory aggravating 16 circumstances that the murder was committed to avoid or prevent lawful arrest.” Second 17 Amended Petition (ECF No. 265), pp. 274-89. 18 Respondents argue that Ground 16 is barred by the statute of limitations because 19 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 20 16 relates back to his original petition, or any other argument that Ground 16, specifically, 21 is timely. There is no claim in Doyle’s original petition that arises from the same core of 22 operative facts as Ground 16. See Petition for Writ of Habeas Corpus (ECF No. 4). 23 Ground 16 does not relate back to the filing of Doyle’s original petition. Ground 16 is 24 barred by the statute of limitations. 25 Respondents also argue that Ground 16 is barred by the procedural default 26 doctrine. See Motion to Dismiss (ECF No. 277), pp. 31-32. Doyle argues that the Nevada 27 Supreme Court addressed this claim, on his direct appeal, as part of its mandatory review 28 under NRS § 177.055, and, therefore, it is not procedurally defaulted. See Opposition to 69 1 Motion to Dismiss (ECF No. 284), pp. 84-85. Specifically, Doyle points out that the 2 Nevada Supreme Court ruled that the evidence at trial supported the aggravating 3 circumstances found by the jury. See id. That issue, considered by the Nevada Supreme 4 Court, was different from the issue raised by the claim in Ground 16. The Court 5 determines that Doyle has not shown that this claim was “clearly encompassed” within 6 the scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 7 Supreme Court. Ground 16 was not exhausted on Doyle’s direct appeal, and is 8 procedurally defaulted. Doyle offers no other argument, specific to Ground 16, to 9 overcome the procedural default. 10 11 Ground 16 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 17A 12 13 In Ground 17A of his second amended petition, Doyle claims that his federal 14 constitutional rights were violated because “[t]here was insufficient evidence for the jury 15 to convict Mr. Doyle of conspiracy to commit murder.” Second Amended Petition (ECF 16 No. 265), pp. 290-93. 17 Respondents argue that Ground 17A is barred by the statute of limitations because 18 it does not relate back to Doyle’s original petition. Doyle responds by pointing to Ground 19 2 of his original petition, which asserted such a claim. See Opposition to Motion to Dismiss 20 (ECF No. 284), pp. 57-60; see also Petition for Writ of Habeas Corpus (ECF No. 4), p. 4. 21 The Court determines that Ground 17A relates back to Doyle’s original petition, and is not 22 barred by the statute of limitations. 23 24 25 Respondents do not contend that Ground 17A is unexhausted or procedurally defaulted. The Court will deny the motion to dismiss with respect to Ground 17A. 26 27 28 70 Ground 17B 1 2 In Ground 17B of his second amended petition, Doyle claims that his federal 3 constitutional rights were violated because “[t]here was insufficient evidence of first- 4 degree kidnapping.” Second Amended Petition (ECF No. 265), pp. 293-94. 5 Respondents argue that Ground 17B is barred by the statute of limitations because 6 it does not relate back to Doyle’s original petition. Doyle responds by pointing to Ground 7 2 of his original petition, which asserted such a claim. See Opposition to Motion to Dismiss 8 (ECF No. 284), pp. 57-60; see also Petition for Writ of Habeas Corpus (ECF No. 4), p. 4. 9 The Court determines that Ground 17B relates back to Doyle’s original petition, and is not 10 11 12 13 14 barred by the statute of limitations. Respondents do not contend that Ground 17B is unexhausted or procedurally defaulted. The Court will deny the motion to dismiss with respect to Ground 17B. Ground 18 15 In Ground 18 of his second amended petition, Doyle claims that his death sentence 16 is invalid, under the federal constitution, “due to the jury finding the statutory aggravating 17 circumstances that the murder was committed by a person under sentence of 18 imprisonment….” Second Amended Petition (ECF No. 265), pp. 296-97. 19 Respondents argue that Ground 18 is barred by the statute of limitations because 20 it does not relate back to Doyle’s original petition. Doyle makes no argument that Ground 21 18 relates back to his original petition, or any other argument that Ground 18, specifically, 22 is timely. There is no claim in Doyle’s original petition that arises from the same core of 23 operative facts as Ground 18. See Petition for Writ of Habeas Corpus (ECF No. 4). 24 Ground 18 does not relate back to the filing of Doyle’s original petition. Ground 18 is 25 barred by the statute of limitations. 26 Respondents also argue that Ground 18 is unexhausted in state court. See Motion 27 to Dismiss (ECF No. 277), p. 37. Doyle responds, arguing that the Nevada Supreme Court 28 addressed this claim, on his direct appeal, as part of its mandatory review under NRS § 71 1 177.055, and, therefore, it is not unexhausted or procedurally defaulted. See Opposition 2 to Motion to Dismiss (ECF No. 284), pp. 84-85. Specifically, Doyle points out that the 3 Nevada Supreme Court ruled that the evidence at trial supported the aggravating 4 circumstances found by the jury. See id. That issue, considered by the Nevada Supreme 5 Court, was different from the issue raised by the claim in Ground 18. The Court 6 determines that Doyle has not shown that this claim was “clearly encompassed” within 7 the scope of NRS § 177.055 and readily apparent in the record reviewed by the Nevada 8 Supreme Court. Ground 18 has not been presented in state court, but would be 9 procedurally barred if Doyle were to return to state court to present the claim. Therefore, 10 the anticipatory default doctrine applies, and the Court considers this claim to be 11 technically exhausted, but procedurally defaulted. Doyle offers no argument, specific to 12 Ground 18, to overcome the procedural default. 13 14 15 Ground 18 will be dismissed as barred by both the statute of limitations and the procedural default doctrine. Ground 19 16 In Ground 19 of his second amended petition, Doyle claims that his conviction and 17 death sentence are invalid under the federal constitution “because of the cumulative effect 18 of the errors in this case.” Second Amended Petition (ECF No. 265), pp. 298-301. 19 This cumulative error claim is exhausted, and is not barred by the statute of 20 limitations or the procedural default doctrine, to the extent there are other viable claims in 21 Doyle’s second amended petition. 22 This cumulative error claim encompasses all other claims of cumulative error found 23 elsewhere in Doyle’s second amended petition – thus, the Court does not treat those 24 other cumulative error claims as distinct claims requiring separate analysis. 25 The motion to dismiss will be denied with respect to Ground 19. 26 27 28 72 1 Motion for Discovery 2 Doyle filed a motion for discovery (ECF No. 286) with his opposition to the motion 3 to dismiss. Respondents filed an opposition to the motion for discovery (ECF No. 293), 4 and Doyle filed a reply (ECF No. 299). 5 A habeas petitioner is not entitled to discovery “as a matter of ordinary course.” 6 Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also Campbell v. Blodgett, 982 F.2d 7 1356, 1358 (9th Cir. 1993). However, “[a] judge may, for good cause, authorize a party to 8 conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of 9 discovery.” Rule 6(a) of the Rules Governing § 2254 Cases. There is good cause for 10 discovery “where specific allegations before the court show reason to believe that the 11 petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled 12 to relief.” Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). 13 The ultimate question whether discovery is justified is within the discretion of the Court. 14 Id. 15 Doyle requests leave of court to conduct discovery with respect to Ground 11. 16 However, as is discussed above, Ground 11 is barred by the statute of limitations, and 17 will be dismissed on that ground. The discovery Doyle proposes does not go to the 18 question of the statute of limitations bar; rather, it goes to the merits of the claim. Because 19 Ground 11 is barred by the statute of limitations, and because the discovery sought by 20 Doyle would not affect that conclusion, the discovery would be for naught. 21 The Court will deny Doyle’s motion for discovery. The denial of Doyle’s motion for 22 discovery is without prejudice to Doyle filing a new motion for discovery, if factually and 23 legally justified, in conjunction with the briefing of the merits of his remaining claims, as 24 contemplated in the scheduling order entered June 28, 2016 (ECF No. 258). 25 Motion for Evidentiary Hearing 26 Doyle also filed a motion for an evidentiary hearing (ECF No. 287). Respondents 27 filed an opposition to that motion (ECF No. 294), and Doyle filed a reply (ECF No. 294). 28 73 1 Evidentiary hearings are authorized in federal habeas corpus actions by Rule 8 of 2 the Rules Governing § 2254 Cases. However, an evidentiary hearing is not required if the 3 issues can be resolved by reference to the state court record. See Totten v. Merkle, 137 4 F.3d 1172, 1176 (9th Cir. 1998) (“It is axiomatic that when issues can be resolved with 5 reference to the state court record, an evidentiary hearing becomes nothing more than a 6 futile exercise.”); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record 7 refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district 8 court is not required to hold an evidentiary hearing.”). Moreover, “an evidentiary hearing 9 is not required if the claim presents a purely legal question and there are no disputed 10 facts.” Beardslee v. Woodford, 358 F.3d 560, 585 (9th Cir. 2004); see also Hendricks v. 11 Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992). 12 Doyle requests an evidentiary hearing to prove his allegations that there is cause 13 and prejudice with respect to his procedural defaults, under Martinez and because of 14 alleged Brady violations. See Motion for Evidentiary Hearing (ECF No. 287), pp. 3-6. 15 However, in this order the Court declines to reach the question whether there was such 16 cause and prejudice. Those issues will be resolved, as necessary, in conjunction with the 17 Court’s consideration of the merits of the subject claims. Therefore, an evidentiary hearing 18 regarding these issues is unnecessary at this time. 19 Doyle also requests an evidentiary hearing with respect to his contention that he 20 can overcome the procedural default of his claims by a showing of actual innocence under 21 Schlup. See Motion for Evidentiary Hearing (ECF No. 287), pp. 6-7. As is discussed 22 above, however, the Court determines that Doyle’s proffered evidence regarding the 23 Nevada Supreme Court vacating his sexual assault conviction, regarding potential 24 impeachment of certain witnesses, regarding his upbringing, and regarding the Nevada 25 Supreme Court striking one of the aggravating circumstances found by the jury, if viewed 26 in the light most favorable to Doyle, is not such as to show his actual innocence within the 27 meaning of Schlup. The Court finds that an evidentiary hearing is unwarranted with regard 28 to these issues. 74 1 Nor is an evidentiary hearing warranted with respect to the question of equitable 2 tolling of the statute of limitations. See Reply to Opposition to Motion for Evidentiary 3 Hearing (ECF No. 298), pp. 23-27 (asserting this basis for Doyle’s request for an 4 evidentiary hearing, for first time, in the reply in support of the motion). The Court resolves 5 that issue based upon uncontested facts that are clear in the record. 6 The Court will deny Doyle’s motion for an evidentiary hearing. The denial of this 7 motion is without prejudice to Doyle filing a new motion for an evidentiary hearing, if 8 factually and legally justified, in conjunction with the briefing of the merits of his remaining 9 claims, as contemplated in the scheduling order entered June 28, 2016 (ECF No. 258). 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 75 1 IT IS THEREFORE ORDERED that respondents’ Motion to Dismiss (ECF No. 277) 2 is GRANTED IN PART AND DENIED IN PART. The following claims are dismissed: the 3 ineffective assistance of appellate counsel claim in Ground 1; Grounds 2, 3A, 3B, 3C, 3D, 4 3F, 3K, 4, 5, 6A1, 6A2, 6A3, 6A4, 6A5, 6A6, 6A7; all of Ground 6A8 except the ineffective 5 assistance of trial counsel claim; and Grounds 7, 8E1, 8E2, 8E3, 9A2, 9A4, 9A5, 9A6, 6 9B1, 9B2, 9B3, 9B4, 9B5, 9B6, 9B7, 10, 11, 12, 13, 14, 15, 16 and 18. IT IS FURTHER ORDERED that petitioner’s Motion for Discovery (ECF No. 286) 7 8 is DENIED. IT IS FURTHER ORDERED that petitioner’s Motion for Evidentiary Hearing (ECF 9 10 No. 287) is DENIED. 11 IT IS FURTHER ORDERED that respondents shall, within 90 days from the date 12 of this order, file an answer, responding to the remaining claims in petitioner’s second 13 amended habeas petition (Ground 1, other than the claim of ineffective assistance of 14 appellate counsel; Grounds 3E, 3G, 3H, 3I, and 3J; the claim of ineffective assistance of 15 trial counsel in Ground 6A8; and Grounds 9A1, 9A3, 17A, 17B and 19). 16 IT IS FURTHER ORDERED that, in all other respects, the schedule for further 17 proceedings set forth in the order entered June 28, 2016 (ECF No. 258) shall remain in 18 effect. 19 20 DATED THIS ___ 2018. 23rdday dayofof______________________, May, 2018. 21 22 23 ROBERT C. JONES, UNITED STATES DISTRICT JUDGE 24 25 26 27 28 76

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