Ralph Schneider v. E. McDaniel, et al
Filing
FILED OPINION (J. CLIFFORD WALLACE, JOHN T. NOONAN and MILAN D. SMITH, JR.) AFFIRMED. Judge: JCW Authoring, Judge: JTN Concurring & dissenting, FILED AND ENTERED JUDGMENT. [8126689]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RALPH SCHNEIDER,
Petitioner-Appellant,
v.
E. K. MCDANIEL; ATTORNEY
GENERAL OF THE STATE OF NEVADA,
Respondents-Appellees.
No. 09-16945
D.C. No.
3:06-cv-00449KJD-RAM
OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted
January 9, 2012—San Francisco, California
Filed April 4, 2012
Before: J. Clifford Wallace, John T. Noonan, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Wallace;
Partial Concurrence and Partial Dissent by Judge Noonan
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COUNSEL
Franny A. Forsman, Federal Public Defender, and Paul G.
Turner, Assistant Federal Public Defender, Las Vegas,
Nevada, for the petitioner-appellant.
Daniel M. Roche, Deputy Attorney General, Carson City,
Nevada, for the respondents-appellees.
OPINION
WALLACE, Senior Circuit Judge:
Petitioner-Appellant Ralph Schneider seeks review pursuant to a certificate of appealability of the denial of his petition
for a writ of habeas corpus. Schneider petitioned for habeas
corpus in the United States District Court for the District of
Nevada under 28 U.S.C. § 2254. His First Amended Petition
stated eight grounds for relief. The district court denied the
petition entirely, but granted a certificate of appealability on
the following issues: (1) the rejection of Ground 1 on the merits; (2) the holding that Grounds 3, 4, 5, and 6 of the amended
petition do not relate back to the original petition; and (3) the
holding that petitioner’s mental condition did not excuse his
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procedural default on Grounds 2 and 7. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253. Schneider also asks
us to consider whether the district court erred in refusing to
hold an evidentiary hearing on Ground 1. We decline to
expand the certificate of appealability and we affirm.
I.
On December 12, 1996, a jury in Nevada state court found
Schneider guilty of robbery with a deadly weapon, false
imprisonment, battery with a deadly weapon, and battery
causing substantial bodily harm. Schneider and his girlfriend,
Lisa Dehmer, had attacked and robbed Randy Krotz in
Krotz’s apartment on August 12, 1996. According to Krotz,
Schneider and Dehmer came to Krotz’s apartment that day to
see if he wanted to buy drugs. Krotz paid Schneider fifteen
dollars for methamphetamine and injected the drug. Dehmer
then grabbed Krotz’s fanny pack to look for more money, bit
him on the nose, and hit him. Schneider ordered Krotz to the
floor and, with Dehmer’s help, tied Krotz’s hands and feet
and gagged him. Schneider held a knife against Krotz’s body
as Dehmer went through the apartment, presumably looking
for money. Krotz testified that over a period of approximately
two hours Schneider and Dehmer stabbed him, cut him, hit
him with the butt end of the knife, kicked him, cut his hair,
poured pickle juice in his wounds, and broke a jar over his
head. Eventually, Schneider and Dehmer left the apartment
with the money they had found and some of Krotz’s personal
property, leaving him bound and gagged. Krotz managed to
free his feet and got help from a neighbor.
The state tried Schneider and Dehmer together. Immediately prior to trial, both Dehmer and Schneider moved to
sever their trials. In his motion, Schneider argued that he
would suffer prejudice by being tried with Dehmer because
she planned to offer a coercion defense that would involve
evidence that Schneider beat Dehmer and that he was part of
the Aryan Brotherhood. The trial judge denied the motions.
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At trial, Dehmer introduced evidence that Schneider had
beaten her and, on two occasions, mentioned Schneider’s
affiliation with the Aryan Warriors or Aryan Brotherhood. On
the first occasion, Dehmer testified that she could not escape
from Schneider because she would have been labeled a snitch,
and that Aryan Warriors kill snitches. Schneider did not
object to this testimony. Later, while cross-examining Dehmer, Schneider’s attorney suggested that Dehmer’s belief that
Schneider had his friends watching her was the result of a
heroin-induced psychosis. Dehmer responded, “It’s a little circle of Aryan Brotherhood.” Schneider requested that the comment be stricken. The trial judge agreed that the comment was
non-responsive, struck it from the record, and admonished the
jury to disregard it.
Schneider did not testify. However, he did offer evidence
that Dehmer was abusive toward him and that he was afraid
of her. Schneider was ultimately convicted on four counts and
Dehmer was convicted on three.
Schneider appealed his conviction without success. The
Nevada Supreme Court dismissed his appeal on June 6, 1997.
The time to petition for certiorari to the United States
Supreme Court expired on September 4, 1997.
Schneider did not pursue further relief until November 20,
2005, when he mailed a pro se petition for a writ of habeas
corpus to the Nevada state court. This petition was denied on
February 7, 2006. His appeal of the state trial court’s denial
was denied on July 10, 2006.
After receiving no relief in the state courts, Schneider
mailed a pro se petition for a writ of habeas corpus to the
United States District Court for the District of Nevada on
August 14, 2006. The district court appointed counsel for
Schneider, and Schneider filed a First Amended Petition on
November 2, 2007.
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On October 23, 2008, the district court granted in part and
denied in part a motion to dismiss the First Amended Petition.
In its order, the district court held that Schneider’s original
petition was timely because Schneider was entitled to equitable tolling of the Anti-Terrorism and Effective Death Penalty
Act’s (AEDPA) one-year statute of limitations for the time
period of September 4, 1997, through November 20, 2005.
The district court concluded that Schneider’s “mental health
conditions constituted extraordinary circumstances standing
in the way of his filing a timely federal petition, such that he
likely would have been unable to file a timely federal petition
due to those circumstances.” Findings of Fact, Conclusions of
Law, and Order at 4 (Oct. 23, 2008). Nevertheless, the district
court held that Grounds 3, 4, 5, and 6 of the amended petition
were untimely because they did not relate back to the original
petition, and were, therefore, filed outside the limitations
period. The district court also held that, while timely, Grounds
2 and 7 of the amended petition were barred by Schneider’s
procedural default. That is, while Schneider’s mental health
condition could excuse his failure to file a federal petition
within AEDPA’s one-year limitations period, it did not constitute cause to excuse his failure to comply with state procedures. On July 9, 2009, the district court denied Ground 1 of
Schneider’s amended petition on the merits.
II.
We review the denial of a petition for writ of habeas corpus
brought under 28 U.S.C. § 2254 de novo. Collier v. Bayer,
408 F.3d 1279, 1281 (9th Cir. 2005). But “[t]o the extent it
is necessary to review findings of fact made in the district
court, the clearly erroneous standard applies.” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002). We also review de
novo the district court’s application of the relation-back doctrine under Federal Rule of Civil Procedure 15(c). Williams v.
Boeing Co., 517 F.3d 1120, 1132 (9th Cir. 2008).
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A.
Schneider first argues that the district court erred in denying Ground 1 of his First Amended Petition. In Ground 1,
Schneider asserted that, “[t]he trial court’s denial of the
motion for mistrial based on Lisa Dehmer’s Aryan Brotherhood testimony denied Schneider his First and Fourteenth
Amendment rights to freedom of association and to due process of law and fair trial.” First Am. Pet. at 7 (Nov. 2, 2007).
He argues that the state court’s adjudication of the claim
resulted in an unreasonable application of clearly established
federal law as determined by the United States Supreme Court
in Dawson v. Delaware, 503 U.S. 159 (1992).
The Supreme Court of Nevada rejected Schneider’s direct
appeal on the following grounds:
We conclude that no error requiring a mistrial
occurred here. First, the state did not elicit the disputed evidence or employ it in any way. Second, the
evidence consisted only of two short remarks by the
codefendant, referring to the Aryan Warriors and the
Aryan Brotherhood. The first was not even objected
to and the district court immediately admonished the
jury to disregard the second. We conclude that these
remarks did not prejudice appellant. Therefore, no
grounds for a mistrial existed, and the court did not
err in denying the motion.
Schneider v. State, No. 30037, Slip Op. at 2-3 (Nev. June 6,
1997). Our task is to determine whether this decision involves
an unreasonable application of Dawson.
The state court’s first rationale for rejecting Schneider’s
Dawson argument was that “the state did not elicit the disputed evidence or employ it in any way.” Id. Slip Op. at 2.
We interpret this rationale as distinguishing Dawson on the
ground that the evidence was offered by a co-defendant as
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part of that co-defendant’s defense rather than offered by the
prosecution.
Schneider disagrees, arguing that “[w]hether it was the
state or co-defendant who elicited the testimony does not
negate the fact that the jury was told that Schneider belonged
to a violent group ‘holding racist or other antisocial beliefs,’ ”
Pet. Br. at 23 (quoting Flanagan v. State, 846 P.2d 1053,
1056 (Nev. 1993)). But Schneider cites no authority for his
proposition that the Nevada Supreme Court’s distinction of
Dawson is invalid.
[1] We recognize that, from the jury’s perspective, evidence of a defendant’s reprehensible abstract beliefs may be
just as prejudicial whether it is offered by a co-defendant or
by the prosecutor. Nevertheless, the United States Supreme
Court dealt with a particular set of facts in Dawson, and its
holding was narrow. Dawson held only that the First Amendment “prevents [the state] from employing evidence of a
defendant’s abstract beliefs at a sentencing hearing when
those beliefs have no bearing on the issue being tried.” 503
U.S. at 168. This holding obviously affects any state government. But, there may well be good reasons for distinguishing
between the state and a co-defendant, at least where, as here,
the evidence is relevant to the co-defendant’s defense. Dawson did not address this question and it does not obviously
require a contrary result. Were we to address the issue
whether Dawson extends to evidence presented by a codefendant, we might or might not come to a different conclusion than the Nevada Supreme Court. But Dawson does not
compel such a result. At the very least, “ ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision,” Harrington v. Richter, 131 S. Ct. 770, 786 (2011),
quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004),
and, therefore, the state court’s determination precludes federal habeas relief.
[2] Even if we were to conclude that this distinction by the
Nevada Supreme Court was unreasonable, we are not con-
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vinced that the principle in Dawson applies in Schneider’s situation. Dehmer’s references to Schneider’s affiliation with the
Aryan Brotherhood were not offered to prove Schneider’s
beliefs so that “the jury would find these beliefs morally reprehensible.” Dawson, 503 U.S. at 167. Rather, Dehmer’s comments were offered to prove that she had a reasonable basis
to fear Schneider because she believed the Aryan Brotherhood
would kill her if they considered her a snitch and because she
believed Schneider had his friends in the Aryan Brotherhood
watching her. The evidence was offered to prove the practices
of the Aryan Brotherhood, not its beliefs. In Dawson, the
Supreme Court expressly recognized that the case would be
different if the evidence proved something more than Dawson’s abstract beliefs. Id.
Second, the Nevada Supreme Court reasoned that no error
requiring a mistrial occurred because the evidence consisted
of only two short remarks that did not prejudice the appellant.
We interpret this rationale as a conclusion by the Nevada
Supreme Court that any error in admitting the evidence was
harmless.
In deciding whether an error was harmless, we ask whether
the alleged error had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993), quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946); see also Merolillo
v. Yates, 663 F.3d 444, 454-55 (9th Cir. 2011).
[3] Even assuming that the admission of Dehmer’s testimony was error, it was harmless under Brecht. The government offered significant direct evidence of Schneider’s guilt.
Schneider does not argue that he presented anything to controvert the state’s evidence. Instead, his defense was that he
performed the acts he was accused of under duress by Dehmer. On this record, we conclude that Dehmer’s passing references to the Aryan Brotherhood or Aryan Warriors did not
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influence the jury to give greater credence to the government’s evidence or to reject Schneider’s defense.
[4] In sum, the Nevada Supreme Court’s determination
that the trial court did not abuse its discretion in refusing to
declare a mistrial is not inconsistent with Dawson. Even if
there were an error, that error would be harmless. Therefore,
we affirm the district court’s denial of Schneider’s petition as
to Ground 1.
B.
Schneider next contends that the district court erred in
holding that Grounds 3, 4, 5, and 6 of the First Amended Petition do not relate back to the original petition.
[5] Claims brought in an amended petition for a writ of
habeas corpus relate back to the original petition if they arise
out of “a common ‘core of operative facts’ uniting the original
and newly asserted claims.” Mayle v. Felix, 545 U.S. 644, 659
(2005). “An amended habeas petition . . . does not relate back
. . . when it asserts a new ground for relief supported by facts
that differ in both time and type from those the original pleading set forth.” Id. at 650. The district court found that Grounds
3, 4, 5, and 6 of Schneider’s amended petition did not share
a common core of operative facts with the grounds asserted
in the original petition.
1.
Ground 3 of the amended petition alleges that the trial
court’s denial of Schneider’s motion to sever the trial rendered his trial fundamentally unfair and denied him due process of law under the Fourteenth Amendment. Schneider
contends that this claim shares a common core of operative
facts with Ground 1(3) of the original petition. In that ground,
Schneider alleged that his trial counsel provided ineffective
assistance by failing to investigate Dehmer’s trial strategy.
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According to the original petition, had Schneider’s trial counsel performed this investigation, he could have prevented the
prejudice caused by Dehmer’s defense by filing a timely pretrial motion to sever and to suppress Dehmer’s testimony.
[6] These two claims do not arise out of a common core of
operative facts. The facts underlying the original claim were:
(1) trial counsel failed to investigate Dehmer’s trial strategy,
(2) trial counsel failed to file a timely motion to sever, (3) trial
counsel failed to file a timely motion to suppress testimony by
Dehmer, and (4) Dehmer testified at Schneider’s trial. The
facts underlying the amended claim are different: (1) trial
counsel brought a motion to sever on the second day of trial,
(2) the trial court denied the motion, and (3) Dehmer testified
at Schneider’s trial. While both theories share one fact: that
Dehmer testified at Schneider’s trial, this is not sufficient to
conclude that they arise out of a common core of operative
facts. Schneider’s original theory was based on trial counsel’s
alleged failures. His amended theory is based on the trial
court’s alleged errors. The core facts underlying the second
theory are different in type from the core facts underlying the
first theory. See Mayle, 545 U.S. at 650. Therefore, relation
back is not appropriate.
2.
Ground 4 of the amended petition alleges that Schneider
received ineffective assistance from his appellate counsel
because appellate counsel failed to argue that his convictions
on Count III and Count IV were mutually exclusive and/or
redundant. He argues that amended Ground 4 arises out of the
same core of operative facts as Ground 2 of the original petition. Schneider alleged ineffective assistance of appellate
counsel in Ground 2 of the original petition by identifying a
number of specific issues that appellate counsel failed to raise
on direct review. Also, Schneider purported to base his original ineffective assistance claim on “additional grounds that
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will be found once an attorney is appointed for petitioner.”
Petition at 8 (Aug. 14, 2006).
[7] The district court recognized the import Schneider’s
argument would have on the relation back doctrine in general.
It reasoned,
In truth, petitioner is arguing that the assertion of any
claim of ineffective assistance of appellate counsel
based upon the failure to raise an issue or issues on
direct appeal thereafter supports the relation back of
any and every claim of ineffective assistance of
appellate counsel that petitioner thereafter may
decide to raise. A holding that relation back is available in that circumstance would stand the Supreme
Court’s decision in Mayle on its head.
Findings of Fact, Conclusions of Law, and Order at 23-24
(Oct. 23, 2008). We agree with the district court that Schneider’s argument would eviscerate Mayle with respect to claims
of ineffective assistance of appellate counsel. Because Schneider’s amended Ground 4 does not share any facts with any of
the ineffective assistance claims raised in original Ground 2,
the district court properly dismissed Ground 4 as untimely.
3.
In Ground 5 of the amended petition, Schneider alleges that
he received ineffective assistance from his trial counsel
because his lawyer failed to interview potential witnesses and
failed to take pictures of the damage to his parents’ house
caused by Dehmer in her fits of rage. Schneider argues that
this ground arises out of the same core of operative facts as
Ground 1(3) of the original petition. As explained above, that
ground alleged that trial counsel provided ineffective assistance by failing to investigate Dehmer’s defense strategy.
[8] We agree with the district court that Ground 5 does not
relate back. Ground 5 is based on trial counsel’s failures to
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prepare Schneider’s defense whereas Ground 1(3) is based on
trial counsel’s failure to investigate Dehmer’s defense. The
two claims have no facts in common.
4.
Finally, Schneider alleges that the district court erred in
holding that Ground 6 of the amended petition did not share
a common core of operative facts with Ground 1(1) of the
original petition. In amended Ground 6, Schneider asserts that
he was denied effective assistance of counsel because his trial
counsel failed to develop a voluntary intoxication defense to
the battery charges. Original Ground 1(1) also alleged ineffective assistance, but it was based on trial counsel’s failure to
have Schneider evaluated by a psychiatrist to determine his
competency to stand trial or to establish a defense of inability
to know right from wrong due to manic depression and schizophrenia.
[9] We agree with the district court that Ground 6 does not
relate back. Inability to know right from wrong is a completely different defense from voluntary intoxication. Presenting a claim that trial counsel rendered ineffective assistance
because he failed to establish a particular defense cannot preserve for the petitioner any claim of ineffective assistance
based on failure to establish a defense that the petitioner
might later discover. Such a holding would, as the district
court put it, stand Mayle on its head. Furthermore, whether
Schneider could have presented a voluntary intoxication
defense has nothing to do with the question of whether he was
competent to stand trial. Amended Ground 6 and original
Ground 1(1) do not arise out of a common core of operative
facts.
C.
The district court held that Grounds 2 and 7 of Schneider’s
amended petition were timely and properly exhausted. How-
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ever, it dismissed these claims without reaching their merits
because of Schneider’s procedural default. Schneider asserts
that his procedural default should be excused because his
mental illness prevented him from complying with the state
procedures.
[10] In Coleman v. Thompson, the Supreme Court held that
a state prisoner’s failure to comply with the state’s procedural
requirements in presenting his claims is barred from obtaining
a writ of habeas corpus in the federal court by the adequate
and independent state ground doctrine. 501 U.S. 722, 731-32
(1991) (“Just as in those cases in which a state prisoner fails
to exhaust state remedies, a habeas petitioner who has failed
to meet the State’s procedural requirements for presenting his
federal claims has deprived the state courts of an opportunity
to address those claims in the first instance”); see also id. at
732 (“The independent and adequate state ground doctrine
ensures that the States’ interest in correcting their own mistakes is respected in all federal habeas cases”). Where a procedural default constitutes an adequate and independent state
ground for denial of habeas corpus, the default may be
excused only if “a constitutional violation has probably
resulted in the conviction of one who is actually innocent,” or
if the prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496
(1986).
Unless the prisoner received ineffective assistance of counsel, cause is ordinarily shown by demonstrating that “some
objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.” Id. at 488.
A habeas petitioner demonstrates prejudice by establishing
that the constitutional errors “worked to his actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” United States v. Frady, 456 U.S.
152, 170 (1982) (emphasis omitted).
Ground 2 of Schneider’s amended petition alleged that
Schneider was denied effective assistance of counsel when his
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trial counsel failed to object to Dehmer’s testimony that he
was a member of the Aryan Warriors or Aryan Brotherhood.
Ground 7 alleged that Schneider was denied effective assistance of counsel at sentencing when his counsel failed to
move to have him examined to determine if he was competent
to assist counsel at trial. Schneider presented both of these
claims for the first time in his state habeas petition in November 2005.
The Supreme Court of Nevada rejected Schneider’s claims
under section 34.726(1) of the Nevada Revised Statutes. That
statute provides,
Unless there is good cause shown for delay, a petition that challenges the validity of a judgment or
sentence must be filed within 1 year after entry of
the judgment of conviction or, if an appeal has been
taken from the judgment, within 1 year after the
Supreme Court issues its remittitur. For the purpose
of this subsection, good cause for delay exists if the
petitioner demonstrates to the satisfaction of the
court:
(a) That the delay is not the fault of the petitioner;
and
(b) That dismissal of the petition as untimely will
unduly prejudice the petitioner.
Nev. Rev. Stat. 34.726(1). Schneider does not argue that section 34.726(1) is not an adequate and independent state
ground. He argues only that his procedural default should be
excused because his mental condition prevented him from
complying with the state’s requirements.
Schneider’s argument is foreclosed by Hughes v. Idaho
State Board of Corrections, where we confirmed that the
cause and prejudice standard applies to a pro se petitioner’s
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procedural default. 800 F.2d 905, 908 (9th Cir. 1986). In that
case, the petitioner did not establish cause for his default in
failing to appeal the denial of his state petition for postconviction relief where that default resulted from his illiteracy
and the loss of legal assistance by another inmate. Id. at 909.
We reasoned,
When a pro se petitioner is able to apply for postconviction relief to a state court, the petitioner must
be held accountable for failure to timely pursue his
remedy to the state supreme court. To hold that illiteracy is a legitimate cause for failing to appeal to the
state supreme court would allow petitioners to wait
until the jurisdictional period lapsed and then proceed directly to federal court. Such a result would be
contrary to the principles of comity underlying the
cause and prejudice rule.
Id.
We developed this principle further in Tacho v. Martinez,
862 F.2d 1376 (9th Cir. 1988). In that case, the state court
denied a claim in the petitioner’s third state petition for postconviction relief on the ground that he had failed to raise the
claim on direct appeal or in his two prior post-conviction petitions. Id. at 1378. Tacho alleged that he had been diagnosed
as “borderline mental defective,” and argued that his mental
condition excused his procedural default. Id. at 1381. Relying
on Hughes, 800 F.2d at 909, we rejected his argument:
While Tacho’s mental condition may or may not be
a more serious infirmity than Hughes’ illiteracy,
Tacho, unlike Hughes, has had help from other
inmates. Tacho has, in fact, had an attorney for all of
his post-conviction petitions except the one raising
the claim involved in the instant petition. If an illiterate petitioner’s complete lack of assistance is not
cause to excuse a procedural default, it necessarily
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follows that a literate pro se petitioner who has had
such assistance cannot establish cause.
Tacho, 862 F.2d at 1381.
[11] The legal principle that we distill from Hughes and
Tacho is that a pro se petitioner’s mental condition cannot
serve as cause for a procedural default, at least when the petitioner on his own or with assistance remains “able to apply
for post-conviction relief to a state court.” Hughes, 800 F.2d
at 909; see also Tacho, 862 F.2d at 1381. Hughes and Tacho
do not necessarily foreclose the possibility that a pro se petitioner might demonstrate cause in a situation where a mental
condition rendered the petitioner completely unable to comply
with a state’s procedures and he had no assistance. But they
do prevent us from excusing a procedural default where a
mental defect had less of an adverse effect on the petitioner’s
ability to comply with state procedures than illiteracy would
have had.
Here, the district court made a factual finding that Schneider’s “conditions imposed far less of a restriction upon his
ability to seek state court relief timely than did the illiteracy
of the petitioner in Hughes.” Findings of Fact, Conclusions of
Law, and Order at 42 (Oct. 23, 2008). This factual finding
was not clearly erroneous. We are therefore bound, as was the
district court, by Hughes.
Schneider presented an expert psychological opinion that
the district court found credible and persuasive. The district
court concluded from this testimony that Schneider “would
have likely been unable to file a timely federal petition with
[his mental health] conditions unless another individual
actively pursued the multiple required steps for him. Schneider’s mental health conditions, in particular, made it unlikely
that he would be able to maintain the focus, pace, consistent
direction, and organizational ability required to complete the
multiple steps required to prepare a post-conviction petition.”
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Id. at 17. Based on these findings, the district court applied
the doctrine of equitable tolling to excuse the tardiness of
Schneider’s federal petition.
The district court’s result seems strange at first glance. One
might ask, how is it that Schneider’s mental conditions so
impeded his ability to file post-conviction petitions as to justify the application of equitable tolling, but did not so impede
his ability to file a state post-conviction petition as to demonstrate cause for a procedural default? But, as the district court
recognized, “[t]he standard to determine whether the petitioner has demonstrated cause vis-à-vis the procedural default
doctrine is not the same as the standard applied above to
determine whether the one-year federal limitation period
should be equitably tolled.” Id. at 41-42. Principles of comity
require federal courts to respect state procedural bars to postconviction relief. Hughes, 800 F.2d at 909. These considerations do not apply to the question of whether a federal court
should apply equitable tolling to a late-filed federal petition.
In other words, in exercising its discretion in applying the
doctrine of equitable tolling, the district court did not need to
consider whether Schneider’s mental conditions imposed a
greater or lesser impediment to his ability to file a petition
than illiteracy would have. But in determining whether
Schneider established cause for his procedural default,
Hughes and Tacho required such an analysis.
[12] Based on the evidence before it, the district court
could have properly found that Schneider’s mental health conditions impeded his ability to file a post-conviction petition
timely without rendering him completely unable to do so. The
evidence does not preclude a finding that illiteracy would
have imposed an even greater hurdle to complying with state
procedures than Schneider’s mental health conditions. The
district court made this finding and, properly applying
Hughes, refused to excuse Schneider’s procedural default.
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Schneider argues that in other circuits mental incapacity
may constitute cause for a procedural default. In particular, he
directs us to Holt v. Bowersox, which held:
Our cases establish that, in order for mental illness
to constitute cause and prejudice to excuse procedural default, there must be a conclusive showing
that mental illness interfered with a petitioner’s ability to appreciate his or her position and make rational decisions regarding his or her case at the time
during which he or she should have pursued postconviction relief.
191 F.3d 970, 974 (8th Cir. 1999), citing Garrett v. Groose,
99 F.3d 283, 285 (8th Cir. 1996); Nachtigall v. Class, 48 F.3d
1076, 1080-81 (8th Cir. 1995); and Stanley v. Lockhart, 941
F.2d 707, 708-10 (8th Cir. 1991). We need not decide the
question now of whether something along the lines of the
Eighth Circuit’s rule might apply where an unassisted pro se
petitioner’s mental condition imposes a greater impediment to
his ability to seek post-conviction relief than would illiteracy.
Where, as here, a district court finds as a matter of fact that
the petitioner’s mental conditions “imposed less of a restriction upon his ability to timely seek state court relief than did
the illiteracy of the petitioner in Hughes,” we are bound by
our own precedent, and affirm the district court.1
1
Judge Noonan reads our decision as creating a division with the Eighth
Circuit. Post at slip op. 3694. The cases are not necessarily inconsistent.
However, to the extent our opinion cannot be reconciled with the Eighth
Circuit’s rule, the split was not created by us. As a three-judge panel, we
are bound to follow our own precedents unless they are clearly irreconcilable with intervening higher authority. Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc). Hughes and Tacho provide the rule for
determining whether a state prisoner’s mental impairment constitutes
cause for his procedural default. That rule, as applied to Schneider,
requires us to conclude that his mental impairment cannot excuse his procedural default.
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D.
Finally, Schneider included in his opening brief an issue
that was not in the certificate of appealability. We construe
such as a motion to expand the certificate of appealability.
Fed. R. App. P. 22, Circuit Rule 22-1(e). We have jurisdiction
to consider such a motion and will grant it only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c).
Schneider contends that the district court denied his constitutional right to an evidentiary hearing on Ground 1 of his
amended petition. The district court denied Schneider’s
request, reasoning that “Ground 1 is a claim of trial error
based upon the failure of the state district court to grant a mistrial based upon what Lisa Dehmer said at trial. Her statements in the record either were a basis for a mistrial or they
were not.” Schneider v. McDaniel, No. 3:06-cv-00449-KJDRAM, 2009 WL 2105707, at *6 n.6 (D. Nev. July 9, 2009).
[13] Schneider has not made a substantial showing that he
was entitled to an evidentiary hearing. He does not even identify any evidence that he argues the district court should have
considered. We decline to expand the certificate of appealability.
AFFIRMED.
NOONAN, Circuit Judge, concurring and dissenting:
I concur in the opinion of the court, clear and convincing
as it is in most respects, except as to one vital point as to
which I dissent: the tolling of the time for filing for postconviction relief.
The district court found that Schneider’s “mental health
conditions constituted extraordinary circumstances standing
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in the way of his filing a timely federal petition, such that he
likely would have been unable to file a timely federal petition
due to those circumstances.” The district court found further:
Schneider “would have likely been unable to file a timely federal petition with these conditions unless another individual
actively pursued the multiple required steps for him. Schneider’s mental health conditions, in particular, made it unlikely
that he would be able to maintain the focus, pace, consistent
direction, and organizational ability required to complete the
multiple steps required to prepare a post-conviction petition.”
In the eight years in which he did nothing, there was no other
person to assist him. He was, the district court concluded,
incapable of filing a federal petition.
Why, in the same time period, was he capable of filing a
state petition? The district court did not say. Was Schneider
able to maintain focus, pace and consistent directions when he
addressed the state? The district court had found incapacity to
prepare the federal petition. What different capacity did
Schneider possess when the petition was submitted to the
state?
Not addressing these questions, the court in the instant
opinion first speaks of comity as a consideration that the district court properly considered. Comity cannot change a fact.
Comity cannot convert lack of focus, pace, consistency of
direction and organizational skills into capabilities now
enjoyed by the state petitioner. Comity cannot turn incompetence into competence.
The instant opinion drops comity and moves to cite Hughes
and Tacho. Neither is relevant or of help here. In Tacho, the
petitioner had the assistance of another person. Here, for eight
years Schneider did not. In Hughes, the petitioner was illiterate but not ill in mind. Illiterate persons are capable of informing themselves by speaking to others. They are not
incapacitated in understanding or in judgment. To draw an
analogy between an illiterate petitioner and a mentally
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impaired petitioner is to deny basic differences in the two
conditions.
As the instant opinion observes, the Eighth Circuit has
reached a different conclusion, so that unfortunately the
instant opinion creates a circuit split.
For these reasons the district court erred in its factfinding,
and the instant opinion endorses the error.
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