Posey v. Neven et al, No. 2:2015cv01482 - Document 34 (D. Nev. 2019)
Court Description: ORDER granting in part and denying in part 24 Motion to Dismiss; Respondents shall file an answer to all claims remaining before the Court within forty-five (45) days of entry of this order and that petitioner may file a reply within forty-five (45) days of service of the answer. Signed by Judge Richard F. Boulware, II on 3/20/2019. (Copies have been distributed pursuant to the NEF - JM)
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Posey v. Neven et al Doc. 34 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 ANTHONY MERITT POSEY, 10 Petitioner, 11 v. Case No. 2:15-cv-01482-RFB-GWF ORDER 12 13 DWIGHT NEVEN, et al., Respondents. 14 15 This habeas matter under 28 U.S.C. § 2254 comes before the Court on 16 respondents’ motion to dismiss (ECF No. 24). Respondents contend that the original 17 petition is untimely and further that Grounds 1 and 2 of the first amended petition do not 18 relate back to the original petition, if otherwise timely. 19 Background 20 Petitioner Anthony Posey challenges his Nevada state conviction, pursuant to a 21 guilty plea, of two counts of abuse and/or neglect of an older person resulting in 22 substantial bodily or mental harm or death. 23 Posey pled guilty specifically to Counts 4 and 7 in the indictment, and the remaining 24 counts were dismissed pursuant to the plea agreement. (See ECF Nos. 25-31 & 25-32.) 25 At the sentencing, the presiding judge sentenced Posey to six to fifteen years on 26 Count 4 and six to fifteen years on Count 7. The judge clearly stated that the sentence 27 on Count 7 would run consecutive to the sentence on Count 4. (ECF No. 25-33 at 45- 28 46.) 1 Dockets.Justia.com 1 The original judgment of conviction, however, instead stated in error “Count 2 to 2 run CONSECUTIVE to Count 1” – in a situation where Posey had not pled guilty to those 3 counts, had not been convicted on those counts, and had not been sentenced on those 4 counts, consecutively or otherwise. (ECF No. 25-34 at 3.) 5 6 The original judgment of conviction was filed on August 23, 2012; and Posey filed a timely notice of appeal on September 19, 2012. (ECF Nos. 25-34 & 26-1.) 7 A month later, while the direct appeal still was pending, an amended judgment of 8 conviction was filed on October 18, 2012. The amended judgment of conviction corrected 9 the error in the original judgment to read instead “Count 7 to run CONSECUTIVE to Count 10 11 12 4.” (ECF No. 26-5 at 3.) Posey did not file a notice of appeal seeking to separately appeal the amended judgment. The time to do so expired on Monday, November 19, 2012. 13 The state supreme court entered an order of affirmance on direct appeal on May 14 15, 2013. (ECF No. 26-14.) The time to seek certiorari review in the United States 15 Supreme Court expired on August 13, 2013. 16 After 274 days had elapsed, on May 15, 2014, petitioner filed a timely state 17 postconviction petition. Proceedings were pending on this petition in the state district 18 court and thereafter the state supreme court through the issuance of the remittitur 19 concluded the postconviction appeal on August 19, 2015. (ECF Nos. 26-16 & 26-42.) 20 Posey mailed the federal petition to the Clerk of this Court for filing on or about 21 July 29, 2015, prior to the issuance of the remittitur on the state post-conviction appeal. 22 (See ECF No. 11 at 1.) 23 24 Discussion Timeliness of the Original Petition 25 The present motion presents the issue of whether, when a state court judgment of 26 conviction is amended during the pendency of a direct appeal from the original judgment 27 of conviction, the federal limitation period starts running after the completion of the 28 ongoing direct appeal proceedings or instead after the expiration of the time to appeal the 2 1 amended judgment, if no separate appeal is taken from the later judgment. The federal 2 petition clearly was timely if the federal limitation period did not begin running until after 3 the August 13, 2013, expiration of the time to seek certiorari review of the order of 4 affirmance on direct appeal. Respondents contend that the federal petition instead was 5 untimely because the limitation period began running after the expiration of the time to 6 appeal the amended judgment of conviction, on November 19, 2012. Respondents 7 maintain that the limitation period therefore expired one year later, on November 19, 8 2013, before Posey sought either state or federal postconviction review. 9 In Smith v. Williams, 871 F.3d 684 (9th Cir. 2017), the Ninth Circuit held that the 10 one-year federal limitation period under 28 U.S.C. § 2244(d) runs from the date of finality 11 of the judgment of conviction under which the petitioner then is being held. The court 12 accordingly held in that case that the limitation period therefore ran from the date of finality 13 of the amended judgment of conviction under which the petitioner then was held rather 14 than from the date of finality of the original judgment of conviction. 15 The Court notes, however, that Smith was decided in a procedural context in which 16 the amended judgment of conviction in question was filed years after completion of the 17 direct appeal proceedings filed following the original judgment of conviction. See 871 F.3d 18 at 685–86. Within that procedurally simple context, the decision speaks in unqualified 19 terms as to which judgment – the original judgment or amended judgment – is “the 20 judgment” for purposes of applying the statutory language of § 2244(d).1 Under the 21 22 1 23 (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— 24 25 26 27 28 28 U.S.C. § 2244(d) provides in full: (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; 3 1 unqualified language in the opinion, the matter of when the one-year period begins to run 2 under § 2244(d)(1) appears to turn solely upon which judgment the petitioner then was 3 being held under when he filed his federal petition. Under the panel's stated rationale, 4 that judgment is “the judgment” for purposes of applying § 2244(d)(1), without 5 qualification. See 871 F.3d at 686-88. 6 7 Petitioner contends that Smith does not apply to this case because the amended judgment in this case corrected only a clerical error in the original judgment. 8 Whether such a change leads to a new intervening judgment for purposes of the 9 federal limitation period is subject to debate under current caselaw. On the one hand, the 10 Ninth Circuit decision in Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017),2 includes 11 the following seemingly categorical language: For AEDPA3 purposes, it does not matter whether the error in the judgment was minor or major. What matters is whether there is an amended judgment. Even if the judgment is not substantively changed, it constitutes a new, intervening judgment if the earlier judgment is amended or even if it is reissued as an amended judgment as in Magwood [v. Patterson, 561 U.S. 320 (2010)]. Here, the judgment, because it contains the new, correct provision of presentence credits, is an amended judgment. 12 13 14 15 16 17 18 19 (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 20 21 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 22 23 24 25 26 27 28 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 2 Gonzalez addressed a question of whether a federal petition filed after an amended judgment of conviction was a successive petition. The same analysis that applies to determine whether an amended state court judgment is a new intervening judgment to in turn determine whether a federal petition is successive also applies to determine whether the federal limitation period has been started or restarted by an intervening judgment. See, e.g., Smith, 871 F.3d at 687. 3 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 4 1 873 F.3d at 773 n.5. On the other hand, the same Gonzalez decision engages in an 2 extensive analysis under California state law to determine whether the amended 3 judgment would be a new judgment under state law, based upon, inter alia, a distinction 4 – under that state’s law – between correction of a “scrivener’s error” in memorializing the 5 oral pronouncement of the sentencing judge and a “rendering error” made by the court 6 itself in pronouncing sentence. See 873 F.3d at 769–73. 7 The Court concludes that it does not need to conduct an extensive analysis of such 8 fine points under Nevada state law to resolve the overall timeliness issue in this case.4 9 The Court instead concludes that the federal limitation period does not begin to run in this 10 procedural context until after the conclusion of review on the then-pending direct appeal 11 even if, arguendo, the amended judgment constituted a new intervening judgment for 12 purposes of AEDPA . 13 Even if the amended judgment became “the judgment” for purposes of applying 14 § 2244(d)(1) under Smith, the pertinent question in the Court’s view then becomes one 15 of when that judgment “became final by the conclusion of direct review or the expiration 16 of the time for seeking such review” for purposes of § 2244(d)(1)(A). Quite clearly, if the 17 state appellate courts overturned the conviction and/or sentence on the pending direct 18 19 20 21 22 23 24 25 26 27 28 4 The Court is not fully sanguine that the prior Ninth Circuit law upon which Gonzalez ultimately relies in truth requires analysis of state law to determine whether an amended judgment is a new intervening judgment for purposes of the federal law in AEDPA. Gonzalez cites to Clayton v. Biter, 868 F.3d 840, 844 (9th Cir. 2017), for the proposition that “[w]e look to state law to determine whether a state court action constitutes a new, intervening judgment.” 873 F.3d at 769. Clayton in turn cited to Hill v. Alaska, 297 F.3d 895 (9th Cir. 2002), for this proposition. Hill does not involve an amended judgment of conviction. The question presented in Hill instead concerned whether a federal petition challenging the calculation of the prisoner’s release date was successive to a prior federal petition challenging instead the validity of the underlying conviction and sentence. Hill did not hold, nor could it hold, that state law is in any sense determinative of the different question of whether an amended judgment of conviction is a new intervening judgment for purposes of federal law. Even more significantly, nothing in the Supreme Court’s prior decision in Magwood or the Ninth Circuit’s earlier leading decisions in Wentzell v. Neven, 675 F.3d 1124 (9th Cir. 2012), and Smith suggested that state law had any determinative role in the inquiry. The panel in Gonzalez engaged in an extensive multi-page analysis of highly technical points of California law regarding judgments to reach a decision. Calculation of the federal limitation period instead preferably should be capable of being done quickly and reliably by busy courts and practitioners as well as – most importantly – by pro se inmates untrained in the law. It is subject to question whether an analysis that turns upon arcane points of state procedural law regarding judgments – to be determined definitively only years later by a federal appellate court – serves anyone’s interests, and especially those of pro se inmates with only limited access to legal resources in prison. The apparently more categorical expressions instead in note 5 in Gonzalez and in Smith do have the advantage of greater simplicity in application, which is a very desirable virtue in this context. 5 1 appeal, the amended judgment would be vacated or modified to the same extent as the 2 original judgment of conviction, without regard to whether the defendant also separately 3 appealed the amended judgment as to some issue specific to that judgment. That is, 4 clearly, the amended judgment would not stand following such a reversal on direct appeal 5 simply because no separate appeal was filed. The amended judgment both practically 6 and legally was just as much under review on direct appeal as was the original judgment, 7 given that both would be subject to being vacated or modified by a full or partial reversal. 8 The Court accordingly holds that, when an intervening new judgment is filed during 9 the pendency of a direct appeal and no separate appeal is filed, that new judgment 10 becomes final for purposes of § 2244(d)(1)(A) upon the conclusion of the then-pending 11 direct review proceedings or the expiration of the time for seeking further such direct 12 review, such as by the expiration of the time to seek certiorari review.5 13 This holding is fully in accord with the statutory language in § 2244(d)(1)(A). The 14 holding merely construes the meaning of the statutory language regarding when the 15 judgment “became final by the conclusion of direct review or the expiration of the time for 16 seeking such review” as applied to the specific context of an amended judgment being 17 filed during the pendency of a direct appeal. 18 Moreover, this construction of the statutory language in § 2244(d)(1)(A) avoids a 19 patently absurd result that Congress clearly did not intend and that is not compelled by 20 the plain language of the statute. There is no valid policy interest served by starting the 21 federal limitation period running while a petitioner’s direct appeal from his conviction and 22 sentence still is pending. Typically, no federal claims are exhausted at that point; and 23 there is no useful purpose served by starting the federal limitation period running at a time 24 when federal review would be premature. Indeed, given that the direct appeal is part of 25 26 27 28 5 In contrast, if a separate appeal is filed from the amended judgment that for some reason is not consolidated with – and then also remains pending after – the disposition of the previously-pending appeal, then it would appear that the limitation period would not begin to run until after the conclusion of such direct review or the expiration of the time to further pursue such direct review. That is, it would appear that direct review still would be ongoing with respect to the amended judgment, albeit based instead solely on the separate appeal proceeding directed only to that judgment rather than also the prior appeal. 6 1 the original criminal proceeding, dismissal under the abstention rule in Younger v. Harris, 2 401 U.S. 37 (1971), typically is required if federal intervention is sought during the 3 pendency of the direct appeal. See, e.g., Sherwood v. Tomkins, 716 F.2d 632, 634 (9th 4 Cir. 1983); Carden v. Montana, 626 F.2d 82, 83-85 (9th Cir. 1980). Starting the federal 5 limitation period – which runs for only one year – running before the petitioner can even 6 effectively seek federal habeas relief just does not make sense. The federal limitation 7 period potentially even could expire in such a scenario before the direct appeal even was 8 concluded, serving no good policy reason. The Court sees no reason to make such a 9 nonsensical holding when the plain language of the statute readily can be construed, as 10 described above, in a manner that does not lead to such an absurd result.6 11 The only end served by construing the statute in the manner proposed by 12 respondents would be to create a “gotcha” trap for the unwary. The Supreme Court 13 repeatedly has declined to construe the federal habeas statutes in such a manner. See, 14 e.g., Rose v. Lundy, 455 U.S. 509, 520 (1982); see also Rhines v. Weber, 544 U.S. 269, 15 279 (2005) (Stevens, J., concurring). This Court also declines to do so here. 16 17 18 19 The original petition was timely. Relation Back Respondents contend in the alternative that Grounds 1 and 2 in the first amended petition do not relate back to claims in the timely original petition. 20 A claim in an amended petition that is filed after the expiration of the limitation 21 period will be timely only if the claim relates back to a timely-filed claim pursuant to Rule 22 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises out of "the 23 24 25 26 27 28 6 Petitioners conceivably could protect their interests by filing a protective federal petition and seeking a stay pending exhaustion of state court remedies, contending that the situation satisfied the special circumstances exception to Younger. However, there seems to be little practical utility to construing § 2244(d)(1)(A) in a manner that requires such a duplicative federal filing -- potentially years before the state direct appeal and then likely state postconviction proceedings are concluded – simply because an amended judgment was filed during still-ongoing state proceedings. Rather, the simple, common-sense construction of § 2244(d)(1)(A) outlined in the text avoids such duplicative proceedings. It also avoids penalizing pro se petitioners who may not have the legal savvy that would be necessary to recognize a counterintuitive and highly technical legal point that the federal limitation period would be running against them even before they had completed state direct appeal proceedings. Simplicity, again, is a desirable virtue when construing a limitation statute that must be complied with by typically pro se litigants. 7 1 same conduct, transaction or occurrence" as the timely claim. Mayle v. Felix, 545 U.S. 2 644 (2005). In Felix, the Supreme Court held that habeas claims in an amended petition 3 do not arise out of "the same conduct, transaction or occurrence" as prior timely claims 4 merely because the claims all challenge the same trial, conviction or sentence. 545 U.S. 5 at 655–64. Rather, under the construction of the rule approved in Felix, Rule 15(c) 6 permits relation back of habeas claims asserted in an amended petition "only when the 7 claims added by amendment arise from the same core facts as the timely filed claims, 8 and not when the new claims depend upon events separate in ‘both time and type' from 9 the originally raised episodes." Id. at 657. In this regard, the reviewing court looks to "the 10 existence of a common ‘core of operative facts' uniting the original and newly asserted 11 claims." Id. at 659. A claim that merely adds "a new legal theory tied to the same 12 operative facts as those initially alleged" will relate back and be timely. Id. at 659 & n.5. At the outset, the Court must reject two general arguments that Posey makes 13 14 regarding both Grounds 1 and 2. 15 First, petitioner urges that Grounds 1 and 2 relate back to claims in the original 16 petition because: (a) he attached a copy of the state district court’s findings, conclusions 17 and order to his federal petition (which the petition form instructions require); (b) the order 18 therefore should be considered as part of his original petition; and (c) the order allegedly 19 discussed claims based on the same core facts. (ECF No. 31 at 12-14.) The Ninth Circuit 20 has rejected petitioner’s premise that a state court order is incorporated into the original 21 petition by such attachment for purposes of relation back. Ross v. Williams, 896 F.3d 22 958, 963–73 (9th Cir. 2018). Posey’s original petition made no reference to the state 23 court order or indicated that it sets forth facts supporting his claimed grounds for relief. 24 He therefore cannot rely upon the state court order as a basis for relation back. Id. at 25 973. 26 Second, petitioner maintains that, because pro se pleadings must be liberally 27 construed, his original petition need only give the respondents notice of the underlying 28 constitutional violations and/or operative facts. (ECF No. 31 at 11 & 13.) Under Rule 2(c) 8 1 of the Rules Governing Section 2254 Proceedings (the “Habeas Rules”), however, federal 2 pleading quite clearly is not notice pleading. As Justice Ginsburg’s opinion for the majority 3 states in Felix: 14 The “original pleading” to which Rule 15 refers is the complaint in an ordinary civil case, and the petition in a habeas proceeding. Under Rule 8(a), applicable to ordinary civil proceedings, a complaint need only provide “fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Habeas Corpus Rule 2(c) is more demanding. It provides that the petition must “specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground.” See also Advisory Committee's Note on subd. (c) of Habeas Corpus Rule 2, 28 U.S.C., p. 469 (“In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. [But] it is the relationship of the facts to the claim asserted that is important ... .”); Advisory Committee's Note on Habeas Corpus Rule 4, 28 U.S.C., p. 471 (“‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.” (internal quotation marks omitted)). 15 545 U.S. at 655. Federal habeas pleading is not notice pleading, even when the petitioner 16 is proceeding pro se. Habeas claims, including when pled by pro se litigants, must be 17 pled with specificity, although they nonetheless are construed liberally when alleged pro 18 se. See, e.g., Felix, 545 U.S. at 656; Ross, 896 F.3d at 971.7 4 5 6 7 8 9 10 11 12 13 19 20 The Court accordingly turns to the controlling inquiry of whether a common core of operative facts unites the amended claims and a claim or claims in the original petition. 21 Ground 1 22 In amended Ground 1, Posey alleges that his guilty plea was not knowing, 23 intelligent or voluntary, in violation of the Fifth, Sixth and Fourteenth Amendments, 24 because he was coerced into entering the plea by the state district court and his counsel. 25 He alleges that he was coerced into entering a plea because: 26 27 28 7 Posey cites no apposite habeas case holding that only notice pleading is required when the petitioner is proceeding pro se. Habeas cases stating only that pro se pleadings must be construed liberally do not establish that only notice pleading is required, contrary to the holding in Felix and Habeas Rule 2(c). 9 1 (1) he was not allowed to enter a plea of not guilty by reason 2 of temporary insanity and was wrongly informed that it 3 would be impossible to pursue such a theory of defense 4 at trial; 5 (2) he was led to believe that trial would be futile because 6 his rights were consistently violated, including his right to 7 adequate notice of the grand jury proceedings; his pro se 8 motions were summarily denied without a hearing; and 9 he was denied effective assistance of counsel when 10 replacement counsel was not appointed following a 11 complete breakdown of trust and communication with 12 counsel, leading to Posey feeling abandoned by his 13 attorneys; 14 (3) he suffered from significant mental health problems that 15 should be taken into account with regard to whether the 16 plea was knowing, intelligent and voluntary, including a 17 history of blackouts and diagnoses of post-traumatic 18 stress 19 personality disorder; and disorder (“PTSD”), bipolar disorder, and 20 (4) he did not understand the plea deal, as he believed that 21 he would be receiving two sentences of two to twenty 22 years and he instead received two sentences of six to 23 fifteen years, which he believes is in violation of the plea 24 agreement. 25 He alleges that the totality of these circumstances “created a coercive environment 26 wherein Posey felt he had no option but to plead guilty.” (ECF No. 18 at 11-14.) 27 In original Ground 3, Posey alleged that he was denied due process of law in 28 violation of the Fourteenth Amendment because “I was coerced into taking a plea of guilty 10 1 due to the acts and omissions listed herein, which goaded me into same via the Court 2 and Defense Counsel.” (ECF No. 11 at 9.) While comparatively sparse, these allegations 3 did expressly incorporate “the acts and omissions listed” in the remainder of the pleading, 4 and a pleader of course can incorporate allegations from other grounds. 5 grounds, Posey alleged, inter alia, that: 6 (1) he was denied variously effective assistance of counsel, 7 an alleged Fourteenth Amendment right to be free from 8 arbitrariness, and due process of law because of, inter 9 alia, “’Petitioner’s plea of not guilty by reason of temporary 10 insanity at the time of the commission of the crime’ being 11 changed to ‘not guilty’ without Petitioner’s knowledge;” and 12 because he “was deemed culpable in violation of Nevada 13 Law, N.R.S. 194.010(5), due to my having a ‘Blackout,’” 14 (id. at 5, 8 & 13); 15 (2) he was denied variously a Sixth Amendment right to fair 16 and full hearings, a right to equal protection of the law, and 17 a Sixth Amendment right to be present because the state 18 district court did not allow him to meaningfully present his 19 pro se motions to dismiss counsel, to rescind the judgment 20 denying same, and to dismiss the indictment, and his 21 efforts to raise issues throughout the criminal proceeding 22 were “completely disregarded,” and further because he 23 was denied his right to be present before the grand jury; 24 and he was denied effective assistance of counsel 25 because, inter alia, “counsel failed to object to numerous 26 substantive[,] procedural and/or “plain errors of the 27 prosecution and the Court (e.g.,: insufficient notice of 28 intent to go to the grand jury[)]” and “counsel Haylee 11 In those 1 Kolkoski professed a 2 communication 3 06/16/2011,” which “caused a lack of trust,” and “Petitioner 4 had counsel with a known ‘conflict of interest,’” (id. at 5, 6, 5 11, 13, 15, 17 & 19); between complete herself breakdown and in Petitioner, 6 (3) he was denied due process because the “sentencing 7 judge intimated numerous opinions and bare assertions by 8 the trial court inconsistent with facts and evidence which 9 show I suffered ‘Blackouts,’’ (id. at 8); and 10 (4) he was denied due process and an alleged right to be free 11 from arbitrariness because he “was not sentenced 12 according to a negotiated plea agreement” and the court 13 allowed itself and the prosecution to breach a negotiated 14 plea agreement between petitioner and the State in 15 violation of Nevada law (id. at 8 & 13). 16 Reading these allegations in the pro se original petition liberally, the Court finds 17 that amended Ground 1 shares a common core of operative facts with and relates back 18 to timely claims in the original petition to the extent, and only to the extent, that amended 19 Ground 1 alleges that Posey’s guilty plea was not knowing, intelligent or voluntary, in 20 violation of the Fifth, Sixth and Fourteenth Amendments, because he was coerced into 21 entering the plea by the state district court and his counsel, because: 22 (1) he was not allowed to enter a plea of not guilty by reason 23 of temporary insanity and was wrongly informed that it 24 would be impossible to pursue such a theory of defense at 25 trial; 26 (2) he was led to believe that trial would be futile because his 27 rights were consistently violated, including his right to 28 adequate notice of the grand jury proceedings; his pro se 12 1 motions were summarily denied without a hearing; and he 2 was denied effective assistance of counsel when 3 replacement counsel was not appointed following a 4 complete breakdown of trust and communication with 5 counsel, leading to Posey feeling abandoned by his 6 attorneys; and 7 (3) he had a history of blackouts, 8 such that the totality of these circumstances, and only these circumstances, created a 9 coercive environment wherein Posey felt that he had no option but to plead guilty. 10 The remaining allegations from amended Ground 1 that the Court summarized 11 previously but that the Court has not included in the recital immediately above do not 12 relate back to a claim in the original petition, as there are no specific factual allegations 13 in the original petition that would support such relation back. The Court notes that while 14 Posey included conclusory allegations in the original petition regarding breach of the plea 15 agreement, he made no specific allegations that the six to fifteen year sentences that he 16 received violated an agreement that he instead receive only two to twenty year sentences 17 and/or that he understood at the time of the plea that he would be receiving the latter 18 sentences. Conclusory claims that allege no specific facts allege no core of operative 19 facts that would support relation back. See, e.g., Ross, 896 F.3d at 971-72. 20 Amended Ground 1 therefore relates back and is timely only to the extent 21 described above. 22 Ground 2 23 In amended Ground 2, Posey alleges that he was denied effective assistance of 24 counsel because of a conflict of interest and/or irreconcilable differences between Posey 25 and the five or more lawyers with the county public defender who represented him at one 26 time or another, including initially attorney Haylee Kolkoski. (ECF No. 18 at 14–17.) 27 Respondents contend that Ground 2 does not relate back to a claim in the original 28 petition to the extent that it alleges an irreconcilable conflict with any of the deputy public 13 1 defenders other than Kolkoski because the original petition refers only to a conflict with 2 Kolkoski. (ECF No. 24 at 9; ECF No. 11 at 6 & 13.) The Court is not persuaded. A claim 3 that petitioner had an irreconcilable conflict with other deputies also with the county public 4 defender relates back to a common core of operative fact with the claim in the original 5 petition that petitioner had an irreconcilable conflict with deputy county public defender 6 Kolkoski. See, e.g., Valdovinos v. McGrath, 598 F.3d 568, 574-76 (9th Cir. 2010), 7 judgment vacated on other grounds for reconsideration, 562 U.S. 1196 (2011), prior 8 relevant holding adhered to in unpublished decision, 2011 WL 996660, 423 Fed.Appx. 9 720, 722 (9th Cir., Mar. 22, 2011) (Brady claim and related ineffective-assistance claim 10 based upon failure to disclose additional items of exculpatory evidence related back to 11 prior claims regarding nondisclosure of other items of exculpatory evidence); see also 12 Rodriguez v. Adams, 545 Fed.Appx. 620 (9th Cir. Nov. 18, 2013) (later claim that counsel 13 was ineffective for failing to investigate the testimony of two potential exculpatory 14 witnesses who were present at the scene related back to earlier claim that counsel was 15 ineffective for failing to investigate the testimony of three other witnesses who also were 16 present at the scene). 17 Ground 2 relates back to the original petition in full. Conclusion 18 19 IT THEREFORE IS ORDERED that respondents’ motion to dismiss (ECF No. 24) 20 is GRANTED IN PART and DENIED IN PART, such that Ground 1 is DISMISSED IN 21 PART with only the portion of the claim described at pages 12–13 of this order remaining 22 before the Court. 23 IT FURTHER IS ORDERED that respondents shall file an answer to all claims 24 remaining before the Court within forty-five (45) days of entry of this order and that 25 petitioner may file a reply within forty-five (45) days of service of the answer.8 26 27 28 8 Respondents assert that they “reserve other applicable procedural arguments” in the event that the Court disagrees with their timeliness argument pursuant to Smith. (ECF No. 24 at 7 n.5.) The scheduling order in this case stated that respondents must raise all potential affirmative defenses in their initial response and that successive motions to dismiss would not be entertained. (ECF No. 20.) Any purported unilateral reservation notwithstanding, the next step in this case therefore is an answer and reply 14 1 The Court will be endeavoring to resolve this matter by September 30, 2019, if 2 possible. Accordingly, in the event of scheduling conflicts between this action and other 3 actions pending in this District, any requests for extension should be sought in the earlier- 4 filed case, absent extraordinary circumstances. 5 DATED: March 20, 2019. 6 7 8 9 ________________________________ RICHARD F. BOULWARE, II United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on the merits. See, e.g., Morrison v. Mahoney, 399 F.3d 1042, (9th Cir. 2005) (“Unless a court has ordered otherwise, separate motions to dismiss may be filed asserting different affirmative defenses.”) (emphasis added). The time to present procedural defenses beyond those raised in the motion to dismiss is past in this case. 15
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