Scruggs v. Neven et al, No. 2:2014cv00625 - Document 23 (D. Nev. 2015)

Court Description: ORDER Granting 6 MOTION to Dismiss. The 2 Petition is Dismissed with prejudice. The 22 MOTION to Strike Petitioner's Sur-Reply is Granted. The Clerk shall strike 21 Sur-Reply from the record. The Petitioner is DENIED A CERTIFICATE OF APPEALABILITY. The Clerk of Court shall enter judgment accordingly. Signed by Chief Judge Gloria M. Navarro on 9/30/15. (Copies have been distributed pursuant to the NEF - ASB)
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Scruggs v. Neven et al Doc. 23 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 1 2 3 4 GLEN SCRUGGS, 5 Petitioner, 6 vs. 7 Case No. 2:14-cv-00625-GMN-CWH DWIGHT NEVEN, et al., 8 ORDER Respondents. 9 10 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 11 by a Nevada state prisoner. Before the Court is respondents’ motion to dismiss the petition. (ECF 12 No. 6). 13 I. PROCEDURAL HISTORY 14 On March 1, 2011, in the Eighth Judicial District for the State of Nevada, petitioner was 15 convicted, pursuant to a guilty plea, of one count of robbery. (Exhibit 35).1 Petitioner was 16 sentenced under Nevada’s large habitual criminal statute to life in prison with parole eligibility after 17 serving ten years in prison. (Id.).2 Petitioner filed a timely notice of appeal. (Exhibit 38). By order 18 filed April 11, 2012, the Nevada Supreme Court affirmed petitioner’ conviction. (Exhibit 53). 19 Remittitur issued on May 7, 2012. (Exhibit 54). 20 On January 30, 2013, petitioner filed a post-conviction petition in the state district court. 21 (Exhibit 60). The state district court denied the petition on May 15, 2013. (Exhibit 68). Petitioner 22 appealed. (Exhibit 73). On February 12, 2014, the Nevada Supreme Court affirmed the denial of 23 the post-conviction habeas petition. (Exhibit 80). Remittitur issued on March 11, 2014. (Exhibit 24 81). 25 26 1 The exhibits referenced in this order are found in the Court’s record at ECF Nos. 7-10. 2 Petitioner was convicted of seven prior felonies, including attempted murder. (Exhibit 33, at pp. 27 28 4-5). Dockets.Justia.com 1 Petitioner dispatched his federal habeas petition to this Court on April 15, 2014. (ECF No. 2 2). Respondents have filed a motion to dismiss the petition. (ECF No. 6). Petitioner filed a 3 response in opposition to respondents’ motion to dismiss. (ECF No. 18). Respondents filed a reply. 4 (ECF No. 19). Petitioner then filed a document entitled “answer to reply to response to motion to 5 dismiss,” which the Court construes as a sur-reply. (ECF No. 21). Respondents have filed a motion 6 to strike petitioner’s sur-reply. (ECF No. 22). 7 II. DISCUSSION 8 A. Motion to Strike Petitioner’s Sur-Reply 9 Respondents seek to strike petitioner’s sur-reply, which was filed in response to 10 respondents’ reply. Rule 7-2 of the Local Rules of Civil Practice authorizes the filing of a motion, a 11 response, and a reply. Local Rule 7-2 does not authorize a party opposing a motion to unilaterally 12 file any further papers responding to the motion after the filing of a reply by the movant. This Court 13 has not authorized the filing of a sur-reply in this case beyond that which is allowed by the Local 14 Rules of Civil Practice. Respondents’ motion to strike (ECF No. 22) petitioner’s sur-reply (ECF 15 No. 21) is granted. 16 B. Grounds 1, 2, and 3(a) 17 Respondents seek to dismiss Grounds 1, 2, and 3(a) of the petition because they are based on 18 false allegations and petitioner is not entitled to relief on such grounds. Summary dismissal is 19 appropriate where the allegations in a habeas petition are “patently frivolous or false.” Hendricks v. 20 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Moreover, the Court must dismiss a federal habeas 21 petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not 22 entitled to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases. 23 In Ground 1, petitioner alleges that his Sixth Amendment rights were violated because his 24 counsel was ineffective for failing to file a timely direct appeal. (ECF No. 2, at pp. 3-5). In Ground 25 2, petitioner alleges that his right to a direct appeal was violated and again alleges that his counsel 26 failed to file a timely notice of appeal after petitioner asked him to appeal the judgment of 27 conviction. (ECF No. 2, at pp. 7-8). In Ground 3(a), petitioner repeatedly alleges that his counsel 28 was ineffective for failing to file a direct appeal after the entry of his judgment of conviction. (ECF -2- 1 No. 2, at pp. 10-17). Petitioner’s “points and authorities” regarding Grounds 1, 2, and 3, at pages 2 19-31 of the petition, further alleges that his counsel failed to file a timely notice of appeal. These 3 allegations are patently false, because it is plain from the state court record that petitioner’s counsel 4 filed a timely notice of appeal on March 30, 2011. (Exhibit 38). Petitioner’s counsel filed the 5 opening brief on direct appeal in the Nevada Supreme Court on September 6, 2011. (Exhibit 46). 6 In fact, petitioner attaches pages 3-9 of the opening brief to his federal habeas petition, but omits 7 page 1 of the opening brief, which states: “Appellant filed his timely Notice of Appeal on March 8 30, 2011.” (Compare ECF No. 2, at pp. 36-43 with Exhibit 46). Petitioner’s allegations that his 9 counsel failed to file a timely notice of appeal are patently false and it is plain that petitioner is not 10 entitled to relief on these grounds. Accordingly, Grounds 1, 2, and 3(a) of the petition are dismissed 11 with prejudice. See Hendricks v. Vasquez, 908 F.2d at 491. 12 C. Ground 3(b) 13 In Ground 3(b), petitioner makes allegations concerning the advice of counsel which were 14 not developed in state court. (ECF No. 2, at pp. 12-13). Petitioner did not request an evidentiary 15 hearing to develop the facts in state court. (Exhibit 60, at p. 9(f)). Instead, he only requested an 16 evidentiary hearing for the express purpose of requiring counsel to explain why he “failed to file a 17 timely notice of appeal.” (Id.). As discussed supra, counsel did file a timely notice of appeal. 18 (Exhibit 38). Because petitioner failed to request an evidentiary hearing to prove his factual 19 allegations concerning the advice of counsel, no hearing was held in the state district court. Thus, 20 petitioner’s allegations in Ground 3(b) have no basis in fact and are not part of the state court record 21 considered by the Nevada Supreme Court in affirming the district court’s decision to deny the claim 22 made in Ground 3(b). 23 “In Pinholster, the Supreme Court held that § 2254(d)(1) ‘requires an examination of the 24 state-court decision at the time it was made and on the same record.’” Stokley v. Ryan, 659 F.3d 25 802, 807-08 (9th Cir. 2011) (quoting Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011)). The record 26 which formed the basis for the Nevada Supreme Court’s decision did not include the factual 27 allegations made in Ground 3(b) of the petition, because petitioner failed to develop such facts 28 during an evidentiary hearing or assert them in his appellate brief. Because petitioner relies on those -3- 1 factual allegations to support his claim, Ground 3(b) must be dismissed because it lacks any basis in 2 fact and petitioner is not entitled to an evidentiary hearing in federal court under the exceptions 3 provided for in 28 U.S.C. § 2254(e)(2)(A). Accordingly, Ground 3(b) is dismissed with prejudice. 4 D. Grounds 4 and 5 5 Respondents seek to dismiss Grounds 4 and 5 of the petition on the basis that they do not 6 raise cognizable claims under the United States Constitution. In Ground 4, petitioner alleges that 7 the state district court abused its discretion in denying his motion to withdraw his guilty plea. (ECF 8 No. 2, at p. 32). Presentence motions to withdraw a guilty plea are governed by state law, see NRS 9 176.165, and are left to the discretion of the state district court. See Molina v. State, 120 Nev. 185, 10 191, 87 P.3d 533, 537 (2004). Petitioner does not cite any provision of the United States 11 Constitution or other federal law in support of his argument. (ECF No. 2, at p. 32). In Ground 5, 12 petitioner alleges that the state district court abused its discretion in allowing the State to argue that 13 he should be sentenced under the large habitual criminal statute. (ECF No. 2, at p. 34). Petitioner 14 does not cite any provision of the United States Constitution or other federal law in support of his 15 argument. (Id.). Because petitioner’s claims in Grounds 4 and 5 are based in state law and not the 16 United States Constitution, they are not cognizable claims for federal habeas relief. See Pulley v. 17 Harris, 465 U.S. 37, 41 (1984). 18 Additionally, to the extent that Grounds 4 and 5 could be construed as alleging federal 19 claims, those claims are unexhausted because they were not federalized in the Nevada state courts. 20 A petitioner must alert the state courts to the fact that he is asserting a federal claim in order to fairly 21 present the legal basis of the claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). In the Ninth 22 Circuit, a petitioner must make the federal basis of the claim explicit by either referencing specific 23 provisions of the federal constitution or statutes, or citing to federal case law. Castillo v. 24 McFadden, 399 F.3d 993, 999; Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), as modified by 25 247 F.3d 904 (9th Cir. 2001). “In order to alert the state court, a petitioner must make reference to 26 provisions of the federal Constitution or must cite either federal or state case law that engages in a 27 federal constitutional analysis.” Fields v. Waddington, 401 F.3d 1018, 1021-22 (9th Cir. 2005). 28 Mere similarity of claims between a state law claim and a federal law claim is insufficient for -4- 1 exhaustion purposes. See Henry, 513 U.S. at 366; see also Johnson v. Zenon, 88 F.3d 828, 830 (9th 2 Cir. 1996). In the instant case, petitioner did not alert the state courts to the fact that he was 3 asserting a federal claim, therefore, he did not fairly present any federal claims to the Nevada state 4 courts. See Duncan v. Henry, 513 U.S. at 365-66. The Court must dismiss a petition if there are no 5 properly exhausted claims. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); see also Jiminez 6 v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). 7 III. Certificate of Appealability 8 9 District courts are required to rule on the certificate of appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and 10 request for certificate of appealability to be filed. Rule 11(a). In order to proceed with his appeal, 11 petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th 12 Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006). Generally, a petitioner must 13 make “a substantial showing of the denial of a constitutional right” to warrant a certificate of 14 appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The 15 petitioner must demonstrate that reasonable jurists would find the district court's assessment of the 16 constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In order to meet 17 this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable 18 among jurists of reason; that a court could resolve the issues differently; or that the questions are 19 adequate to deserve encouragement to proceed further. Id. In this case, no reasonable jurist would 20 find this Court’s dismissal of the petition debatable or wrong. The Court therefore denies petitioner 21 a certificate of appealability. 22 IV. CONCLUSION 23 IT IS THEREFORE ORDERED that respondents’ motion to strike (ECF No. 22) 24 petitioner’ sur-reply is GRANTED. The Clerk of Court SHALL STRIKE petitioner’s sur-reply 25 (ECF No. 21) from the Court’s record. 26 27 28 IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 6) is GRANTED. IT IS FURTHER ORDERED that the petition (ECF No. 2) is DISMISSED WITH -5- 1 2 3 4 5 6 PREJUDICE in its entirety. IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that the Clerk of Court SHALL ENTER JUDGMENT ACCORDINGLY. DATED this 30th day of September, 2015. 7 8 9 Gloria M. Navarro, Chief Judge United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-