Edward Thomas Wilson vs. E.K. McDaniel, et al (DEATH PENALTY)

Filing 221

ORDER that Petitioner's 196 Motion for an Evidentiary Hearing and 197 Motion for Limited Discovery are DENIED without prejudice. The pending 213 and 217 Motions for Extension of Time are GRANTED nunc pro tunc as of their respective filing dates. Signed by Judge Gloria M. Navarro on 9/30/2019. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

EDWARD THOMAS WILSON,

10
11
12
13

v.

Petitioner,

Case No. 2:98-cv-01174-GMN-BNW
ORDER

TIMOTHY FILSON, et al.,
Respondents.

14
15

Before the court are petitioner Wilson’s motion for an evidentiary hearing (ECF No. 196)

16

and motion for limited discovery (ECF Nos. 197/199). With the former, he argues that he is

17

entitled to an evidentiary hearing to establish cause and prejudice, under Martinez v. Ryan, 566

18

U.S. 1 (2012), to excuse any procedural defaults and to show that he received ineffective

19

assistance of counsel (IAC) in the guilt and penalty phase of his trial. With the latter, he asks

20

permission to depose witnesses who may not be able to appear in person at an evidentiary

21

hearing. For reasons that follow, the motions will be denied without prejudice.

22

In Martinez, the Supreme Court noted that it previously held, in Coleman v. Thompson,

23

501 U.S. 722, 746-47 (1991), that “an attorney’s negligence in a postconviction proceeding does

24

not establish cause” to excuse procedural default. Martinez, 566 U.S. at 15. The Court in

25

Martinez “qualif[ied] Coleman by recognizing a narrow exception: inadequate assistance of

26

counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural

27

default of a claim of ineffective assistance at trial.” Id. at 9. The Court described “initial-review

28

collateral proceedings” as “collateral proceedings which provide the first occasion to raise a

1

claim of ineffective assistance at trial.” Id. at 8. It took care to point out that its “holding … does

2

not concern attorney errors in other kinds of proceedings, including appeals from initial-review

3

collateral proceedings, second or successive collateral proceedings, and petitions for

4

discretionary review in a State's appellate courts.” Id. at 16. Also, Martinez cannot serve to

5

excuse the default of any claim that is not an ineffective assistance of trial counsel claim. See

6

Davila v. Davis, 137 S. Ct. 2058, 2070 (2017) (expressly declining to extend the Martinez

7

exception to allow federal courts to consider ineffective assistance of appellate counsel claims).

8

Wilson argues that, because he has presented colorable claims of ineffective assistance of

9

trial counsel and post-conviction review (PCR) counsel, Martinez allows him to add evidence to

10

his IAC claims without the usual evidentiary limitations imposed by 28 U.S.C. § 2254(d)(1) and

11

28 U.S.C. § 2254(e)(2). ECF No. 195, p. 60; ECF No. 196, p. 4. Be that as it may, Martinez

12

applies only in the context of a petitioner seeking to excuse a procedural default. At this point,

13

this court has not determined that any of Wilson’s ineffective assistance of trial counsel claims

14

are procedurally defaulted.
Citing to Dickens v. Ryan, 740 F.3d 1302, 1320 (9th Cir. 2014) (en banc), Wilson argues

15
16

in his traverse that Martinez “applies to claims, like those in Wilson’s May 2015 Federal

17

Petition, that are ‘new’ because federal habeas counsel ‘substantially improved’ upon a version

18

of the claim presented to the state court.” ECF No. 195, p. 47. The relevant holding in Dickens

19

applies, however, only if “new factual allegations either ‘fundamentally alter the legal claim

20

already considered by the state courts,’ or ‘place the case in a significantly different and stronger

21

evidentiary posture than it was when the state courts considered it.’” Dickens, 740 F.3d at 1318

22

(quoting exhaustion case law). In that case, the claim is unexhausted and, because it can no

23

longer be raised in state court, procedurally defaulted as well. Williams v. Filson, 908 F.3d 546,

24

572-73 (9th Cir. 2018).

25

In moving for an evidentiary hearing, Wilson fails to specify which particular IAC claims

26

he is claiming are “new” claims for the purposes of Martinez/Dickens. And, because claims

27

presented in Wilson’s second state PCR proceeding were exhausted and are not procedurally

28

defaulted in this court, claims presented in that proceeding must be considered, as well as those
2

1

in his initial state PCR proceeding, in determining whether his third amended federal petition

2

presents a “new” IAC claim implicating Martinez. See Williams, 908 F.3d at 573-74.

3

In addition, Wilson’s conviction became final in 1985 and he has sought post-conviction

4

relief in state court with four separate proceedings. This court questions whether the holding in

5

Martinez would extend to claims that Wilson did not raise until his 2015 federal petition or, for

6

that matter, even until his defaulted third and fourth state petitions in 2005 and 2008. Put

7

another way, the court is not convinced that ineffective assistance of counsel in Wilson’s initial

8

PCR proceeding can still serve as “cause” for any default of Wilson’s “new” trial IAC claims

9

given the length of time that has elapsed and Wilson’s prior opportunities to raise those claims.

10

In light of the foregoing, Wilson’s motion for an evidentiary hearing and related motion

11

for limited discovery are denied without prejudice to Wilson renewing the motions with a more

12

particularized showing that Martinez applies to distinct trial IAC claims in his third amended

13

federal petition and that he is entitled to an evidentiary hearing in relation to those claims.

14

IT IS THEREFORE ORDERED that petitioner’s motion for an evidentiary hearing

15

(ECF No. 196) and motion for limited discovery (ECF Nos. 197/199) are DENIED without

16

prejudice.

17
18

IT IS FURTHER ORDERED that pending motions for extensions of time (ECF Nos.
213/217) are GRANTED nunc pro tunc as of their respective filing dates.

19

DATED: September 29, 2019

20
_________________________________________
UNITED STATES DISTRICT JUDGE

21
22
23
24
25
26
27
28

3