CHARLES MCNELTON v. E.K. MCDANIEL, et al. (DEATH PENALTY)

Filing 210

ORDERED that petitioner's motion to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e) (ECF No. 204 ) is GRANTED in part and DENIED in part. IT IS FURTHER ORDERED that petitioner shall have 90 days from the date of this ord er (6/27/2021) to file a brief in support of his procedurally defaulted trial IAC claims. Respondents shall have 90 days following petitioner's brief to file a response. Petitioner will have 60 days following the response to file a reply. IT IS FURTHER ORDERED that respondents' motion for extension of time (ECF No. 207 ) is GRANTED nunc pro tunc as of June 25, 2020. Signed by Judge Robert C. Jones on 3/29/2021. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5 CHARLES McNELTON,
6

Petitioner

Case No.: 2:00-cv-00284-RCJ-DJA
ORDER

7 v.
8 WILLIAM GITTERE, et al.,
9

Respondents

10
11

On May 14, 2020, this court entered a final order and judgment denying petitioner

12 McNelton’s second amended petition for writ of habeas corpus (ECF No. 133) on the merits.
13 ECF Nos. 201/202. On June 11, 2020, McNelton filed a motion to alter or amend judgment
14 pursuant to Fed. R. Civ. P. 59(e). ECF No. 204. With his motion, McNelton asks the court to
15 reconsider several procedural decisions related to timeliness and procedural default. In the
16 alternative, he asks the court to expand its certificate of appealability (COA) to include these
17 issues.
18

Under Federal Rule of Civil Procedure 59(e), a party may move to have the court amend

19 its judgment within twenty-eight days after entry of the judgment. “A motion for reconsideration
20 under Rule 59(e) ‘should not be granted, absent highly unusual circumstances, unless the district
21 court is presented with newly discovered evidence, committed clear error, or if there is an
22 intervening change in the controlling law.’” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th
23 Cir. 1999) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).

1 “Since specific grounds for a motion to amend or alter are not listed in the rule, the district court
2 enjoys considerable discretion in granting or denying the motion.” Id. at 1255, n.1 (quoting 11
3 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 (2d ed.1995)). Even so,
4 amending a judgment after its entry remains “an extraordinary remedy which should be used
5 sparingly.” Id.
6
7

1. Equitable tolling.
McNelton argues that this court’s determination that he is not entitled to equitable tolling

8 of the statute of limitations should be revisited in light of the Ninth Circuit’s intervening decision
9 in Williams v. Filson, 908 F.3d 546 (9th Cir. 2018).
10

In Williams, the petitioner filed his initial petition within the one-year statutory period

11 under 28 U.S.C. § 2254(d) but filed his amended habeas petition raising new claims over a year
12 beyond the end of the period. Id. at 557. While added claims that “relate back” to the initial
13 petition under Fed. R. Civ. P. 15(c) may be considered timely, the Williams court opted not to
14 address relation-back because it concluded that petitioner was entitled to equitable tolling for the
15 period between the statutory deadline (August 29, 1998) and the date he filed his amended
16 petition (September 17, 1999). Id. at 558. In particular, the court granted equitable tolling based
17 on petitioner’s reasonable reliance on the unsettled state of the law on relation back in the habeas
18 context during the relevant time period. 908 F.3d at 559-60.
19

The court found petitioner’s reliance was “eminently reasonable” because (1) as of

20 August 1998 petitioner’s counsel “had no reason to suspect that Rule 15(c) would pose an
21 obstacle to consideration of newly added claims in an amended petition” and (2) the federal
22 district court and the State also assumed any newly added claims would relate back. Id. at 56023 61. With respect to the former, the court cited to the Ninth Circuit’s broad construction of the

2

1 relation-back standard that prevailed at the time. Id. at 560. As for the district court, the court
2 noted “the series of scheduling orders” that permitted Sonner additional time to file his amended
3 petition. Id. These orders were entered in accordance with the “George Memo,” which
4 established standardized procedures for adjudicating federal capital cases in Nevada. Id. at 556.
5 The court also noted that “the State waited eight years after receiving the amended petition
6 before moving to dismiss any of the claims on the ground that they did not relate back to the
7 original petition under Rule 15(c).” Id. at 561 (emphasis in the original). The court summarized
8 by stating that “it was not until the Supreme Court decided Mayle [v. Felix, 545 U.S. 644
9 (2005),] that anyone involved in this case suggested that the newly added claims might not relate
10 back and could therefore be deemed untimely.” Id.
11

McNelton argues that he is entitled to equitable tolling for the exacts same reasons as

12 those relied upon by the court in Williams. While there are some similarities between the cases,
13 there are also important distinguishing factors that make the holding in Williams inapplicable.
14

McNelton filed his initial petition in this case on March 7, 2000. Appointed counsel

15 appeared for McNelton on May 10, 2000. As in Williams, this court entered scheduling orders
16 that set aside considerable time for McNelton to gather and review the record and to conduct
17 discovery, if authorized, prior to deciding whether to file an amended petition. The one-year
18 filing period under 28 U.S.C. § 2254(d) elapsed on December 29, 2000.
19

The court granted numerous extensions for time in relation to both discovery proceedings

20 and the deadline for the amended petition, most of which were pursuant to a stipulation by the
21 parties. Consequently, discovery proceedings extended well beyond the initial timeframe
22 established by the court, which at the time was a common occurrence in this court’s capital
23

3

1 cases. McNelton’s first amended petition was filed approximately five years after the initial
2 deadline set by the court.
3

Arguably, McNelton, like Williams, reasonably relied on the unsettled state of the law on

4 relation back in the habeas context up until Supreme Court’s decision in Mayle. In Williams,
5 however, the court granted equitable tolling for a period of time before Mayle clarified the
6 relation back doctrine as applied to habeas cases. Here, McNelton did not file his first amended
7 petition until November 16, 2006, seventeen months after the decision in Mayle.
8

As discussed above, the impediment to timely filing in Williams was Williams’s

9 reasonable reliance on the unsettled state of the law on relation back in the habeas context during
10 the relevant time period. The Mayle decision removed that impediment. Williams supports, at
11 most, an extension of the filing period up until June 23, 2006, one year after the issuance of
12 Mayle.
13

Also, in addition to identifying an impediment to timely filing, a petitioner requesting

14 equitable tolling must also show that he “has been pursuing his rights diligently.” Holland v.
15 Florida, 560 U.S. 631, 649 (2010) (internal quotation omitted). For a petitioner to establish
16 diligence under Holland, “he must show that he has been reasonably diligent in pursuing his
17 rights not only while an impediment to filing caused by an extraordinary circumstance existed,
18 but before and after as well, up to the time of filing his claim in federal court.” Smith v. Davis,
19 953 F.3d 582, 598-99 (9th Cir. 2020).
20

With respect to diligence, McNelton contends that he “was deep in the throes of

21 discovery litigation when Mayle was decided.” ECF No. 204 at 18. However, as noted in the
22 court’s prior order denying equitable tolling, discovery proceedings had been completed at least
23 five months prior to McNelton filing his amended petition. ECF No. 175 at 8 (citing ECF No.

4

1 88). Rather than show that he continued to diligently pursue his rights, McNelton merely claims
2 that there was “no guidance whatsoever for petitioners like [him], whose AEDPA time expired
3 before Mayle, but who had not yet filed their amended petitions by the time Mayle was decided,
4 as to what they should do to ensure timely amendments.” ECF No. 209 at 5-6. That is not
5 sufficient to establish reasonable diligence.
6

Due to the distinguishing factors discussed above and McNelton’s failure to demonstrate

7 reasonable diligence, the Ninth Circuit’s decision in Williams is not an intervening change in the
8 controlling law that requires the court to alter or amend its judgment.
9
10

2. Relation Back
McNelton asks the court to reconsider its determinations that Claims Five(D), Six(A),

11 Ten, Eleven(F), Twelve(B), and portions of Fourteen do not relate back to his original petition.
12 With respect to these claims, he argues the court failed to first consider whether the claim raised
13 a “new ground for relief” before moving on to determine whether the ground is “supported by
14 facts that differ in and type from those in the original pleading set forth.” ECF No. 204 at 22-23
15 (citing Mayle, 545 U.S. at 650). He contends that, for the claims above, his amended petition
16 merely clarifies a previously raised ground of constitutional error and, therefore, should not be
17 construed as raising a “new ground” and should not preclude relation-back under Fed. R. Civ. P.
18 15(c).
19

McNelton’s arguments are wholly unconvincing and unsupported by legal authority. For

20 each of the cited claims, the court compared the claims in his amended petition to those in his
21 original petition to see whether the pleadings set out or attempted to set out “a corresponding
22 factual episode,” or whether the claim in the amended petition “is instead supported by facts that
23 differ in both time and type” from those in the original petition. Ross v. Williams, 950 F.3d 1160,

5

1 1167 (9th Cir. 2020). The reasons the claims do not relate back are adequately explained in the
2 court’s prior order. ECF No. 175 at 11-13. McNelton’s motion does not provide sufficient
3 grounds for the court to alter its prior rulings.
4
5

3. Adequacy and Independence of State Procedural Bars.
McNelton also asks the court to reconsider its determination that the state court’s

6 application of the timeliness bar (Nev. Rev. Stat. § 34.726) was an adequate and independent
7 procedural bar to federal court consideration of some of his claims. Specifically, he contends that
8 the court failed to recognize that Claims One, Six(C), Eight(A), Six(E), Eleven(F), and
9 Twelve(C) were adjudicated on the merits in state court. He further argues that Nev. Rev. Stat.
10 § 34.726 was not an adequate bar as applied to successive petitions.
11

As to the former, the order ruling on the respondents’ motion to dismiss addressed the

12 same argument for the cited claims and determined it to be without merit. ECF No. 175 at 16-17.
13 McNelton’s current motion does not provide a compelling reason to deviate from the court’s
14 prior ruling. Likewise, with respect to the adequacy of Nev. Rev. Stat. § 34.726 as applied to
15 successive petitions, the court adequately analyzed that issue in its prior order and sees no reason
16 to alter that decision. ECF No. 175 at 21-24.
17
18

4. Martinez v. Ryan.
McNelton contends this court erred by concluding that the holding in Martinez v. Ryan,

19 566 U.S. 1 (2012), could not serve as grounds to excuse the procedural default of his ineffective
20 assistance of counsel (IAC) claims. In Martinez, the Supreme Court held that, in collateral
21 proceedings that provide the first occasion to raise a claim of ineffective assistance at trial,
22 ineffective assistance of post-conviction counsel in that proceeding may establish cause for a
23 prisoner's procedural default of such a claim. Martinez, 566 U.S. at 9. In ruling upon the

6

1 respondents’ motion to dismiss, this court determined that McNelton’s Martinez arguments
2 lacked merit because of the “insufficient causal connection between the alleged ineffective
3 assistance of first post-conviction counsel and the procedural default” at issue, noting in
4 particular that the “default occurred because his second state habeas action was initiated twelve
5 years after the conclusion of his direct appeal.” ECF No. 175 at 24–25.
6

McNelton argues this court erred because the default occurred when Nevada's statute of

7 limitations (Nev. Rev. Stat. § 34.726) expired, not when the claims were finally presented to the
8 Nevada courts. Respondents concede this point but argue that, nonetheless, “McNelton is not
9 entitled to reconsideration of this claim without showing that the delay in returning to state court
10 was not part of an attempt to evade state court review.” Respondents offer no legal authority for
11 their counterargument. And, as McNelton points out, the Ninth Circuit recently reversed a ruling
12 by this court that petitioner’s failure to justify a lengthy delay in presenting claims omitted from
13 his initial collateral proceeding prevented him from relying on Martinez. See Snow v. Baker, 820
14 F. App'x 541, 543 (9th Cir. 2020).
15

Having concluded that its Martinez ruling was incorrect, the court will grant McNelton’s

16 Rule 59(e) motion on this point. The court will provide McNelton the opportunity to establish
17 cause and prejudice to overcome his procedural defaults by showing that his claims of
18 “ineffective assistance of trial counsel” are “substantial” claims and that his counsel was
19 “ineffective” counsel during the first state collateral review proceeding. Trevino v. Thaler, 569
20 U.S. 413, 423 (2013).
21

The court recognizes that these issues have, to some extent, already been briefed by the

22 parties. However, in both their reply in support of their motion to dismiss and their opposition to
23 McNelton’s Rule 59(e) motion, respondents requested the opportunity to address the merits of

7

1 McNelton’s underlying IAC claims. ECF No. 170 at 53 n. 30; ECF No. 208 at 12. In addition,
2 the existing briefing is unnecessarily confusing 1 and includes several claims for which Martinez
3 relief is clearly not available. 2 ECF No. 165 at 119-71; ECF No. 170 at 53-71).
4

Accordingly, the court will permit the parties to provide more focused argument on the

5 trial IAC claims for which McNelton believes, in good faith, he can make the necessary showing
6 under Martinez. The court will entertain briefing on both the question of cause and prejudice
7 under Martinez and the underlying merits of the claims of ineffective assistance of trial counsel.
8

5. Actual Innocence.

9

McNelton faults this court for not analyzing whether he could overcome the procedural

10 default of some of his claims by demonstrating his actual innocence. McNelton did not, however,
11 raise any such argument in opposing the motion to dismiss in which procedural default was
12 raised as an affirmative defense. ECF No. 165. Consequently, the court is not willing to entertain
13 the argument in the context of a Rule 59(e) motion. See Banister v. Davis, 140 S. Ct. 1698, 1708
14 (2020) (in deciding a Rule 59(e) motion,”[c]ourts will not entertain arguments that could have
15 been but were not raised before the just-issued decision”).
16

6. Dismissal of Sub-claim under Claim Five(C).

17

In Claim Five(C) of his second amended petition, McNelton alleged trial counsel were

18 ineffective for failing to challenge the admission of evidence of prior bad acts during the penalty
19 phase. This court dismissed this claim as procedurally defaulted. ECF No. 201 at 6-7. Among the
20
21
22

1

McNelton chose to divide the claims into several categories. Respondents attempted, with
limited success, to address the claims in the order McNelton presented them.
2

For example, several of the claims allege ineffective assistance of appellate counsel. See Davila
v. Davis, 137 S. Ct. 2058, 2065 (2017) (declining to extend Martinez to claims) of ineffective
23
assistance of appellate counsel). Other claims are patently without merit (Claim Six(E), e.g.) or
have been dismissed for other reasons (Claim Five(D), e.g.).
8

1 allegations in Claim Five(C) is a claim that trial counsel was ineffective in failing to request a
2 hearing on the admissibility of prior bad acts in the guilt phase of his trial. ECF No. 133 at 70-71.
3

Although McNelton previously disavowed making a guilt phase ineffective assistance

4 claim under Claim Five(C), he now contends that was done by mistake. Accordingly, he argues
5 that, because the claim was adjudicated on the merits by the Nevada Supreme Court, this court
6 should address the merits of his claim that counsel was ineffective in failing to request a hearing
7 on the admissibility of prior bad acts in the guilt phase of his trial.
8

In deciding McNelton’s appeal of the denial of his state post-conviction petition, the

9 Nevada Supreme Court concluded that the trial court had erred by not conducting a hearing on
10 the admissibility of evidence of a prior bad act. McNelton v. State, 990 P.2d 1263, 1269 (1999).
11 The Nevada Supreme Court determined, however, that defense counsel’s performance in relation
12 to the admission of the evidence was not ineffective assistance of counsel because the result of
13 McNelton’s trial would have been the same even if the evidence had been excluded. Id. at 1270.
14

In answering McNelton’s federal petition, the respondents persuasively argued that the

15 Nevada Supreme Court’s denial of McNelton’s ineffective assistance of counsel claim was
16 neither contrary to, nor an unreasonable application of, clearly established federal law as
17 determined by the United States Supreme Court. ECF No. 178 at 6-11 (relying on 28 U.S.C. §
18 2254(d)(1)). McNelton did not respond to this argument in his traverse (ECF No. 184), nor does
19 he address it in his arguments in support of his current motion. In absence of a showing that the
20 Nevada Supreme Court’s decision was “so lacking in justification that there was an error well
21 understood and comprehended in existing law beyond any possibility for fairminded
22 disagreement,” the claim must be denied. See Harrington v. Richter, 562 U.S. 86, 103 (2011).
23 \ \ \

9

1
2

7. Certificate of Appealability.
Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue when the petitioner "has made a

3 substantial showing of the denial of a constitutional right." With respect to claims rejected on the
4 merits, a petitioner "must demonstrate that reasonable jurists would find the district court's
5 assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,
6 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a
7 COA will issue only if reasonable jurists could debate (1) whether the petition states a valid
8 claim of the denial of a constitutional right and (2) whether the court's procedural ruling was
9 correct. Id.
10

With the exception of the Martinez issue, the court stands by its prior rulings for the

11 reasons discussed above. The court also finds that reasonable jurists would not find the rulings
12 debatable or wrong. Thus, the court declines to expand the COA in this case.
13

IT IS THEREFORE ORDERED that petitioner’s motion to alter or amend judgment

14 pursuant to Fed. R. Civ. P. 59(e) (ECF No. 204) is GRANTED in part and DENIED in part.
15

IT IS FURTHER ORDERED that petitioner shall have 90 days from the date of this

16 order to file a brief in support of his procedurally defaulted trial IAC claims. Respondents shall
17 have 90 days following petitioner’s brief to file a response. Petitioner will have 60 days
18 following the response to file a reply.
19

IT IS FURTHER ORDERED that respondents’ motion for extension of time (ECF No.

20 207) is GRANTED nunc pro tunc as of June 25, 2020.
21

Dated: March 29, 2021

22

_________________________________
UNITED STATES DISTRICT JUDGE

23

10