Clark v. Baker et al, No. 3:2012cv00579 - Document 55 (D. Nev. 2015)

Court Description: ORDER granting in part 51 Motion to Dismiss as follows (see order for details). Petitioner to have 30 days to notify the Court re the unexhausted claims. If Petitioner elects to abandon his unexhausted grounds, Respondents to have 30 days from Petitioner's declaration of abandonment to answer; Petitioner to reply 30 days thereafter. Respondents' 50 Motion to Extend Time is granted nunc pro tunc. Signed by Judge Miranda M. Du on 9/24/2015. (Copies have been distributed pursuant to the NEF - KR)
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Clark v. Baker et al Doc. 55 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 WILLIAM RONALD CLARK, Petitioner, 10 11 Case No. 3:12-cv-00579-MMD-VPC ORDER v. RENEE BAKER, et al., 12 Respondents. 13 14 This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 15 Petitioner filed a counseled first-amended petition. (Dkt. no. 48.) Before the Court is 16 respondents’ motion to dismiss. (Dkt. no. 51.) Petitioner opposed the motion (dkt. no. 17 52), and respondents replied (dkt. no. 53). 18 I. PROCEDURAL HISTORY AND BACKGROUND 19 A jury convicted petitioner William Ronald Clark (“Clark” or “petitioner”) of count 20 1: robbery with the use of a deadly weapon; count 3: assault with a deadly weapon; 21 count 4: discharging a firearm out of a motor vehicle; and count 8: assault with a deadly 22 weapon (exhibits to respondents’ first motion to dismiss, dkt. no. 22, Exh. 83).1 The 23 state district court adjudicated Clark a habitual criminal and sentenced him to four 24 concurrent terms of eight to twenty years. (Exh. 44.) The court ordered the sentences to 25 be served consecutive to the term imposed in a separate case. Id. 26 27 28 All exhibits referenced in this order are exhibits to respondents’ first motion to dismiss (dkt. no. 22), which was dismissed without prejudice, and are found at dkt. nos. 23-27. 1 The Nevada Supreme Court affirmed Clark’s convictions on December 3, 2009. 1 2 (Exh. 55.) Remittitur issued on December 29, 2009. (Exh. 56.) 3 Petitioner filed a state postconviction petition for writ of habeas corpus on 4 November 30, 2010. (Exh. 58.) The state district court conducted an evidentiary hearing 5 and ultimately denied the petition. (Exhs. 68, 69.) Petitioner appealed, the Nevada 6 Supreme Court affirmed the denial of the petition on October 8, 2012, and remittitur 7 issued on November 2, 2012. (Exhs. 98, 105, 106.) 8 Petitioner dispatched his federal habeas corpus petition on October 30, 2012. 9 (Dkt. no. 8.) This Court appointed counsel, and petitioner filed a counseled first- 10 amended petition on October 24, 2014. (Dkt. no. 48.) Respondents have filed a motion 11 to dismiss, arguing that several grounds should be dismissed because they do not 12 relate back to the original petition, are unexhausted, or are noncognizable. 13 II. LEGAL STANDARDS AND ANALYSIS 14 A. Relation Back 15 Respondents argue that several grounds in the amended petition do not relate 16 back to the original petition and should thus be dismissed as untimely. (Dkt. no. 51 at 7- 17 9.) A new claim in an amended petition that is filed after the expiration of the 18 Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-year limitation period will 19 be timely only if the new claim relates back to a claim in a timely-filed pleading under 20 Rule 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises out 21 of “the same conduct, transaction or occurrence” as a claim in the timely pleading. 22 Mayle v. Felix, 545 U.S. 644 (2005). In Mayle, the United States Supreme Court held 23 that habeas claims in an amended petition do not arise out of “the same conduct, 24 transaction or occurrence” as claims in the original petition merely because the claims 25 all challenge the same trial, conviction or sentence. Mayle, 545 U.S. at 655-64. Rather, 26 under the construction of the rule approved in Mayle, Rule 15(c) permits relation back of 27 habeas claims asserted in an amended petition “only when the claims added by 28 amendment arise from the same core facts as the timely filed claims, and not when the 2 1 new claims depend upon events separate in ‘both time and type’ from the originally 2 raised episodes.” Id. at 657. In this regard, the reviewing court looks to “the existence 3 of a common core of operative facts uniting the original and newly asserted claims.” Id. 4 at 65 (internal quotation mars omitted). A claim that merely adds “a new legal theory 5 tied to the same operative facts as those initially alleged” will relate back and be timely. 6 Id. at 659 & n. 5. 7 Here, the parties do not dispute that petitioner’s original federal petition, 8 dispatched on October 30, 2012, was timely. Nor do they dispute that the one-year 9 limitations period expired on February 12, 2013. (Dkt. nos. 50, 52.) Thereafter, on May 10 28, 2013, petitioner submitted what he also styled as a habeas petition. (Dkt. no. 38.) In 11 its order dated March 31, 2014, this Court recounted in detail what led petitioner to take 12 such action. (Dkt. no. 42 at 2-4.) This Court also appointed counsel, observing that “[a]t 13 the very least, amendment to the pleadings whether as originally or currently 14 presented is necessary. This action cannot be effectively litigated and adjudicated 15 with the pleadings in their current state, for which the Court accepts responsibility. Such 16 pleading amendment, however, would appear to be more appropriately accomplished 17 through appointed counsel . . . . ” Id. at 3-4. Petitioner filed his counseled, first-amended 18 federal petition on October 24, 2014. (Dkt. no. 48.) 19 Respondents now argue that all claims in the counseled, first-amended petition 20 must relate back to the original petition as set forth at docket number 8 only. (Dkt. no. 21 51 at 8-9.) However, in light of this Court’s order at docket number 42 it is clearly 22 appropriate to consider both docket numbers 8 and 38 as comprising the original 23 petition for the purposes of determining which claims relate back. 24 1. Ground 2(d) 25 In ground 2(d) of the first-amended petition, Clark claims that his trial counsel 26 rendered ineffective assistance of counsel in violation of his Sixth and Fourteenth 27 Amendment rights because counsel was unprepared for the state’s expert fingerprint 28 testimony. (Dkt. no. 48 at 19-22.) Counsel allegedly failed to elicit testimony from two 3 1 witnesses to emphasize that none of the fingerprints were identified as Clark’s. (Id.) In 2 his original petition, Clark pointed out that an expert testified that none of the fingerprints 3 processed matched his prints. (Dkt. no. 38 at 6.) He further argued that his trial counsel 4 was ineffective because he did not ask the expert if the prints matched those of Joe 5 Buckles another individual who was present despite the fact that Clark told his 6 counsel that it was Buckles who fired the shots. (Id.) 7 This Court is persuaded that the ineffective assistance claims in ground 2(d) 8 surrounding the fingerprint evidence arise from the same core facts as the timely filed 9 claims and do not differ in time or type from the original claims. Mayle, 545 U.S. at 657. 10 Ground 2(d) relates back to the original petition and is therefore timely. 2. 11 Grounds 4 and 5 12 Clark alleges in ground 4 that state postconviction counsel rendered ineffective 13 assistance in violation of his Fifth, Sixth and Fourteenth Amendment rights by failing to 14 argue to the Nevada Supreme Court that trial counsel was ineffective when he did not 15 obtain certified judgments of conviction for the purposes of impeaching one of the 16 State’s witnesses at trial. (Dkt. no. 48 at 29-30.) In ground 5, Clark claims that state 17 postconviction counsel was ineffective for failing to present a claim of cumulative error. 18 (Dkt. no. 48 at 31.) As respondents point out, the federal habeas statute precludes 19 Clark from relying on the ineffectiveness of his postconviction attorney as a ground for 20 relief in cases brought under § 2254. See 28 U.S.C. § 2254(I) (“[t]he ineffectiveness or 21 incompetence of counsel during Federal or State collateral postconviction proceedings 22 shall not be a ground for relief in a proceeding arising under section 2254”). 23 Accordingly, grounds 4 and 5 are not cognizable in this proceeding. 24 25 In conclusion, ground 2(d) relates back and is therefore timely. Grounds 4 and 5 are dismissed as not cognizable in federal habeas corpus. 26 B. Exhaustion 27 Next, while this Court has determined that ground 2(d) is timely, respondents 28 also argue that ground 2(d), as well as ground 3, are unexhausted. (Dkt. no. 51 at 11.) 4 1 A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner 2 has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 3 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair 4 opportunity to act on each of his claims before he presents those claims in a federal 5 habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. 6 Henry, 513 U.S. 364, 365 (1995). “A claim remains unexhausted until the petitioner has 7 given the highest available state court the opportunity to consider the claim through 8 direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 9 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 10 Submitting a new claim to the state's highest court in a procedural context in which its 11 merits will not be considered absent special circumstances does not, however, 12 constitute fair presentation. Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing 13 Castille v. Peoples, 489 U.S. 346, 351 (1989)). 14 A habeas petitioner must “present the state courts with the same claim he urges 15 upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal 16 constitutional implications of a claim, not just issues of state law, must have been raised 17 in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. 18 Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court 19 must be “alerted to the fact that the prisoner [is] asserting claims under the United 20 States Constitution” and given the opportunity to correct alleged violations of the 21 prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. 22 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) 23 “provides a simple and clear instruction to potential litigants: before you bring any claims 24 to federal court, be sure that you first have taken each one to state court.” Jiminez v. 25 Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. at 520). 26 “[G]eneral appeals to broad constitutional principles, such as due process, equal 27 protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala, 28 195 F.3d at 1106 (citations omitted). However, citation to state caselaw that applies 5 1 federal constitutional principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 2 (9th Cir. 2003) (en banc). 3 A claim is not exhausted unless the petitioner has presented to the state court 4 the same operative facts and legal theory upon which his federal habeas claim is based. 5 Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The 6 exhaustion requirement is not met when the petitioner presents to the federal court facts 7 or evidence which place the claim in a significantly different posture than it was in the 8 state courts, or where different facts are presented at the federal level to support the 9 same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. 10 Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 11 458 (D. Nev. 1984). 1. 12 Ground 2(d) 13 Again, Clark claims in ground 2(d) that his trial counsel rendered ineffective 14 assistance of counsel when he was unprepared for the state’s expert fingerprint 15 testimony. (Dkt. no. 48 at 19-22.) Counsel allegedly failed to elicit testimony to 16 emphasize that none of the fingerprints were identified as Clark’s. (Id.) 17 18 19 20 21 22 23 In his appeal of the denial of his state postconviction petition, Clark argued that his counsel proved that he was unprepared for trial when the fingerprint expert began her testimony. During said testimony, she stated that a palm print found at the scene belonged to [Clark]. Unprepared for this information, [trial counsel] asked [Clark] during the expert’s testimony if those, in fact, were his prints. . . [and Clark] repeatedly was forced to assure his own attorney that they were not. (Exh. 98 at 17.) 24 Respondents contend that ground 2(d) is an entirely different claim than the 25 claim presented in state court. (Dkt. no. 51 at 11.) Arguably, federal ground 2(d) 26 presents some expansion of the factual allegations raised to the state supreme court, 27 where petitioner includes specific allegations about his trial counsel’s lack of preparation 28 for the fingerprint testimony. (Dkt. no. 48 at 21.) However, this Court concludes that 6 1 petitioner has presented to the state supreme court the same operative facts and legal 2 theory upon which this federal ground is based. Bland, 20 F.3d at 1473. Ground 2(d) is 3 exhausted. 2. 4 Ground 3 5 Clark asserts that his trial counsel rendered ineffective assistance when he failed 6 to adequately cross examine a police officer regarding false information in the 7 declaration of arrest in violation of Clark’s Fifth, Sixth and Fourteenth Amendment rights 8 to due process and a fair trial. (Dkt. no. 48 at 26-29.) The Nevada Supreme Court 9 declined to consider this claim because it was raised for the first time in Clark’s appeal 10 of the denial of his state postconviction petition. (Exh. 98 at 16-17; Exh. 105 at 3.) 11 Therefore, respondents are correct that ground 3 was not fairly presented to the state 12 supreme court and is thus unexhausted. This Court declines to engage in an 13 “anticipatory default” analysis here. 14 III. PETITIONER’S OPTIONS REGARDING UNEXHAUSTED CLAIM 15 A federal court may not entertain a habeas petition unless the petitioner has 16 exhausted available and adequate state court remedies with respect to all claims in the 17 petition. Rose v. Lundy, 455 U.S. at 510. A “mixed” petition containing both exhausted 18 and unexhausted claims is subject to dismissal. Id. In the instant case, the Court finds 19 that ground 3 is unexhausted. Ground 2(d) is exhausted. Grounds 4 and 5 are 20 dismissed as not cognizable. Thus the petition is a “mixed petition,” containing both 21 exhausted and unexhausted claims, and therefore, petitioner, through counsel, has 22 these options: 23 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claim in his federal habeas petition, and proceed only on the exhausted claims; 2. He may return to state court to exhaust his unexhausted claim, in which case his federal habeas petition will be denied without prejudice; or 3. He may file a motion asking this court to stay and abey his exhausted federal habeas claims while he returns to state court to exhaust his unexhausted claim. 24 25 26 27 28 7 With respect to the third option, a district court has discretion to stay a petition 1 2 that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005). 3 The Rhines court stated: 4 9 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”). 10 Rhines, 544 U.S. at 277. Thus the court held that it likely would be an abuse of 11 discretion for a district court to deny a stay and to dismiss a mixed petition if the 12 petitioner had good cause for his failure to exhaust, his unexhausted claims are 13 potentially meritorious, and there is no indication that the petitioner engaged in 14 intentionally dilatory litigation tactics. Id. at 278. 15 IV. 5 6 7 8 16 17 CONCLUSION It is therefore ordered that respondents’ motion to dismiss certain grounds in the amended petition (dkt. no. 51) is granted in part as follows: 18 1. Ground 2(d) is exhausted. 19 2. Ground 3 is unexhausted. 20 3. Grounds 4 and 5 are dismissed as not cognizable in federal habeas 21 corpus. 22 It is further ordered that petitioner, through counsel, shall have thirty (30) days to 23 either: (1) inform this Court in a sworn declaration that he wishes to formally and forever 24 abandon the unexhausted ground for relief in his federal habeas petition and proceed 25 on the exhausted grounds; or (2) inform this Court in a sworn declaration that he wishes 26 to dismiss this petition without prejudice in order to return to state court to exhaust his 27 unexhausted claim; or (3) file a motion for a stay and abeyance, asking this Court to 28 hold his exhausted claims in abeyance while he returns to state court to exhaust his 8 1 unexhausted claim. If petitioner chooses to file a motion for a stay and abeyance, or 2 seek other appropriate relief, respondents may respond to such motion as provided in 3 Local Rule 7-2. 4 It is further ordered that if petitioner elects to abandon his unexhausted ground, 5 respondents shall have thirty (30) days from the date petitioner serves his declaration of 6 abandonment in which to file an answer to petitioner’s remaining grounds for relief. The 7 answer shall contain all substantive and procedural arguments as to all surviving 8 grounds of the petition, and shall comply with Rule 5 of the Rules Governing 9 Proceedings in the United States District Courts under 28 U.S.C. §2254. 10 11 12 13 14 15 16 17 It is further ordered that petitioner shall have thirty (30) days following service of respondents’ answer in which to file a reply. It is further ordered that if petitioner fails to respond to this order within the time permitted, this case may be dismissed. It is further ordered that respondents’ motion for extension of time to file a response to the first-amended petition (dkt. no. 50) is granted nunc pro tunc. DATED THIS 24th day of September 2015. 18 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 9