Michael Hampton Sonner v. E.K. McDaniel, et al, (DEATH PENALTY)

Filing 280

ORDER. IT IS ORDERED that 269 respondents motion for reconsideration is DENIED. IT IS FURTHER ORDERED that the court issues the following indicative ruling under Rule 62.1 regarding the respondents motion: See Order for Details. IT IS FURTHER ORDE RED that 276 respondents unopposed motion for extension of time is GRANTED nunc pro tunc as of 11/16/2020. IT IS FURTHER ORDERED that 278 petitioners motion for leave to file a sur- reply is GRANTED. Signed by Judge Kent J. Dawson on 3/17/2021. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 1 of 10

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

MICHAEL SONNER,

10
11
12

Case No. 2:00-cv-01101-KJD-DJA
Petitioner,

v.

ORDER

WILLIAM GITTERE, et al.,

13

Respondents.

14
15

Before the court is respondents’ motion for reconsideration of this court’s prior

16

decisions relating to timeliness and procedural default. In particular, respondents ask

17

the court to reconsider its order of October 2, 2019 (ECF No. 259), wherein the court

18

determined that, under Williams v. Filson, 908 F.3d 546 (9th Cir. 2018), Sonner is

19

entitled to equitable tolling for numerous habeas claims the court had previously

20

dismissed as untimely. Respondents also argue that this court erred in its order of

21

March 26, 2013 (ECF No. 170), when it determined that those claims were not

22

procedurally defaulted. For reasons that follow, the motion for reconsideration is denied,

23

but the court will issue an indicative ruling with respect to the procedural default issue.

24
25
26
27
28

1. Timeliness.
In Williams, the court concluded that the habeas petitioner was entitled to
equitable tolling for the period between the statutory deadline and the date he filed his

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 2 of 10

1

amended petition due to petitioner’s reasonable reliance on the unsettled state of the

2

law on relation back in the habeas context during the relevant time period. 908 F.3d at

3

559-60. Noting the procedural similarity between this case and Williams, this court

4

entered an indicative ruling under Rule 62.1 that Sonner was entitled to Rule 60(b) relief

5

with respect to claims this court had previously dismissed as untimely. ECF No. 250.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

As in Williams, Sonner, this court, and the State relied on the
assumption that any newly added claims arising from the same trial and
conviction would automatically relate back to the initial petition. That
assumption was vindicated by the Ninth Circuit’s decision in Felix v.
Mayle, 379 F.3d 812 (9th Cir. 2004). It was not until June 23, 2005, with
the Supreme Court’s issuance of Mayle v. Felix, that the parties to this
case and the court learned that only new claims that shared a “common
core of operative facts” with existing claims would relate back to the initial
petition as contemplated in Fed. R. Civ. P. 15(c). See Mayle, 545 U.S.
663-64. Thus, in light of Williams, this court must conclude that Sonner is
entitled to equitable tolling from the date he filed his initial petition until
June 23, 2005. In addition, there does not appear to be a dispute that,
discounting that time period, Sonner filed his amended petition with nine
days of the one-year statutory period to spare. Thus, all the claims in the
amended petition are timely.
Respondents argue that Sonner is not entitled to equitable tolling
because, by waiting 194 days after the Mayle decision to file his amended
petition, he did not exercise reasonable diligence. See Holland v. Florida,
560 U.S. 631, 649 (2010) (habeas petitioner must demonstrate “that he
has been pursuing his rights diligently” to be entitled to equitable tolling).
As previously noted by this court, however, the time gap did not preclude
a finding of diligence “given the complexity and gravity of his capital case.”
ECF No. 243, p. 4. Sonner’s amended petition is nearly 500 pages and
contains over 100 claims of error. ECF No. 96.
Also, under the Ninth Circuit’s stop-clock rule, Sonner was “entitled
to use the full one-year statute-of-limitations period.” See Grant v.
Swarthout, 862 F.3d 914, 919 (9th Cir. 2017). By showing an entitlement
to tolling for any amount of time during the limitations period, then that
time is to be subtracted from the total number of days that have passed
from the date on which the AEDPA limitations period began to run. See id.
at 918. While it left for “another day” the question whether a petitioner with
a timely petition under this scenario “may need to prove that he was
diligent after an extraordinary circumstance has ended,” the court in Grant
strongly suggested the answer is that he does not. Id. at 924 n.9.

25

Id. at 4-5 (footnote omitted). When the Ninth Circuit granted Sonner’s motion for a

26

limited remand, this court entered its order of October 2, 2019, granting Sonner’s Rule

27

60(b) motion. ECF No. 259.

28
2

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 3 of 10

1

Respondents argue the court should reconsider its decision to grant equitable

2

tolling because the Ninth Circuit in Smith v. Davis, 953 F.3d 582 (9th Cir. 2020),

3

specifically rejected the “stop-clock” rule. The court in Smith held that, for a petitioner to

4

meet the reasonable diligence prong of Holland’s equitable tolling standard, “he must

5

show that he has been reasonably diligent in pursuing his rights not only while an

6

impediment to filing caused by an extraordinary circumstance existed, but before and

7

after as well, up to the time of filing his claim in federal court.” 953 F3d at 598-99.

8
9

This court agrees that it stopped short of conclusively resolving the diligence
question based on the assumption that it was not necessary to do so under the stop-

10

clock rule. Sonner argues that he is nonetheless entitled to equitable tolling because he

11

exercised the requisite level of diligence in preparing and filing his amended petition

12

following the Supreme Court’s decision in Mayle. The court in Smith emphasized that,

13

notwithstanding its rejection of the stop-clock approach, “the rule remains that ‘[t]he

14

diligence required for equitable tolling purposes is “reasonable diligence,” not “maximum

15

feasible diligence.”’” Id. at 599 (quoting Holland, 560 U.S. at 653)).

16

In arguing that he was reasonably diligent in pursuing his rights, Sonner cites to

17

the extensive work required to complete the amended petition, this court’s orders

18

granting him extensions of time, and his decision to include all potentially meritorious

19

claims in his amended petition. Having considered these arguments and the

20

respondents’ arguments in opposition, the court is satisfied that Sonner is entitled to

21

equitable tolling notwithstanding the Smith decision.

22

About five weeks before the Supreme Court issued Mayle on June 23, 2005, this

23

court had set August 24, 2005, as the deadline for Sonner’s amended petition. ECF No.

24

82. On August 16, 2005, Sonner’s counsel requested a 90-day extension of time, citing

25

not only remaining work to be done on the amended petition, but also the need to spend

26

time on case budgeting and management, as well as work on numerous other cases.

27

ECF No. 89. The court found good cause for the extension but granted it on the

28
3

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 4 of 10

1

condition that no further extensions would be permitted in the absence of extraordinary

2

circumstances. ECF No. 90.

3

When counsel filed a motion for an additional 30-day extension in November

4

2005 (ECF No. 91), the court ordered a hearing because the motion made no reference

5

to the requirement that Sonner “show extraordinary circumstances to justify any further

6

extension of time,” nor did the motion “purport to make any such showing.” ECF No. 92.

7

While the specific reasons cited by counsel at the hearing are not in the court record,

8

the court subsequently found “that at the November 21 hearing petitioner’s counsel

9

made a satisfactory showing of circumstances justifying one further extension of the

10

time for amendment of the habeas petition in this case” and “extend[ed] to January 2,

11

2006, the time for petitioner to file and serve a First Amended Petition.” ECF No. 94.

12

Sonner filed the amended petition on January 3, 2006. ECF No. 96. While they

13

are not dispositive, the court’s orders granting extensions of time at least support a

14

finding that Sonner was exercising reasonable diligence between June 23, 2005, and

15

January 3, 2006. Sonner also points to the lackluster work of his state post-conviction

16

counsel and the “10,000 pages of new material to review for potential habeas claims” he

17

had accumulated “[a]t the time discovery closed in October 2004.” ECF No. 275 at 15.

18

And, given its length and breadth, the amended petition undoubtedly required vast

19

amounts of time to prepare and file.

20

The court is also not persuaded by respondents’ argument that, if diligent,

21

Sonner would have been more selective about the claims he included in his petition. As

22

Sonner points out, counsel representing a capital habeas petitioner are advised by

23

American Bar Association Guidelines to raise all arguably meritorious claims. ECF No.

24

275 at 20 (citing ABA Guideline 10.15.1(C)).

25

In summary, the record supports a finding that, during the relevant time period,

26

Sonner “work[ed] on his petition with some regularity—as permitted by his

27

circumstances—until he file[d] it in the district court.” Smith, 953 F.3d at 601. The

28
4

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 5 of 10

1

additional circumstances noted above also support a finding of reasonable diligence.

2

Thus, the court stands by its prior decision to grant Sonner equitable tolling.

3
4

2. Procedural default.
In response to respondents’ motion to dismiss his amended petition, Sonner

5

moved to stay federal proceedings in order to exhaust state remedies for his

6

unexhausted federal claims. ECF No. 108. The court granted the motion. ECF No. 113.

7

As a result, this action was stayed from December 21, 2006, until January 9, 2012.

8

When the stay was lifted, respondents filed a motion to dismiss that raised both the

9

timeliness defense discussed above and a procedural default defense. ECF No. 132.

10

As to the latter, respondents argued the doctrine of procedural default barred this

11

court from considering any claim in his amended federal petition that had yet to be

12

exhausted when he returned to state court in 2007 to complete exhaustion. In deciding

13

that motion, this court determined that, although the timeliness bar imposed by the

15

Nevada Supreme Court (Nev. Rev. Stat. § 34.726) was a "clear, consistently applied,

16

applied the rule to Sonner in a way that rendered it inadequate to bar federal court

17

review of his claims. ECF No. 170 at 21-22 (citing Lee v. Kemna, 534 U.S. 362, 376

18

(2002)). Specifically, this court determined that the Nevada courts deprived Sonner the

19

opportunity to overcome the timeliness bar by showing of good cause and prejudice in

20

the manner prescribed by state law. Id.

14

21

and well-established” procedural rule at the time of Sonner’s default, the state court

With their motion for reconsideration, respondents argue that ruling was based

22

on this court’s misunderstanding of U.S. Supreme Court precedent and its

23

misconstruction of the state court’s treatment of Sonner’s exhaustion petition.

24

Respondents argue that finding an otherwise adequate state procedural bar to be

25

inadequate in a particular case is permitted only when the state court applied the rule in

26

an unforeseeable manner, which was not the case here. Having taken a closer look at

27

controlling case law, this court agrees that it viewed too broadly the “limited category” of

28
5

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 6 of 10

1

“exceptional cases in which exorbitant application of a generally sound rule renders the

2

state ground inadequate to stop consideration of a federal question.” Lee, 534 U.S. at

3

376. Indeed, there is a notable paucity of reported cases in which the Ninth Circuit has

4

placed a case in this “limited category.”

5

In Lee, the petitioner orally requested a continuance of his murder trial when

6

subpoenaed alibi witnesses failed to appear, but the trial court denied the motion due to

7

scheduling conflicts. Years later, in response to Lee’s argument on direct appeal that

8

the refusal to grant a continuance denied him due process and the right to present a

9

defense, the State invoked for the first time a Missouri rule that lists the factual

10

showings necessary to obtain a continuance due to the absence of witnesses. Id. at

11

372, 380. The Missouri Court of Appeals denied relief based on that rule and another

12

rule requiring that motions for continuance be submitted in writing along with an

13

affidavit. Id. at 372-73.

14

After noting that Lee could have readily complied with the rules if they had been

15

contemporaneously mentioned by the prosecutor or trial judge, the Supreme Court

16

found application of the rules inadequate to bar federal review based on “three

17

considerations, in combination”: (1) Lee’s formal compliance with the rules would not

18

have changed the trial judge’s continuance decision, (2) “no published Missouri decision

19

directs flawless compliance with [the rules] in the unique circumstances this case

20

presents,” and (3) Lee substantially complied with the rules with his “submissions both

21

immediately before and at the short trial.” Id at 380-82, 387. Commenting on “the

22

exceptional category Lee described and illustrated,” the Court in in Walker v. Martin,

23

562 U.S. 307 (2011), noted that “a state court’s persnickety application of a rule” on

24

continuance motions did not bar federal court review because “[t]he defendant had

25

substantially complied with the rule's key requirement and flawless compliance would

26

have been unavailing given the trial court's reason for denying the motion.” 562 U.S. at

27

316 n.4.

28
6

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 7 of 10

1

This court overlooked these defining aspects of Lee when it relied upon the case

2

to find the Nevada Supreme Court’s application of Nev. Rev. Stat. § 34.726 inadequate

3

to bar federal review of Sonner’s claims. In addition, respondents’ argument that this

4

court misconstrued the Nevada courts’ procedural default rulings also has some merit.

5

This court’s order granting a stay focused on four claims in Sonner’s amended

6

petition “that respondents concede[d] to be timely and that respondents claim[ed] to be

7

unexhausted.” ECF No. 113. Having been granted a stay, Sonner returned to state

8

district court and filed a second state habeas petition on February 1, 2007, advancing

9

the claims contained in his amended federal petition. ECF No. 134. Relying on this

10

court’s stay order, the state district court entered an order sua sponte directing Sonner

11

to file an amended petition containing only the four claims identified in this court’s stay

12

order because “all other claims as set forth in the petition are untimely under NRS

13

34.726.” ECF 136-4 at 5.

14

Concerned that the state district court had erred by relying on this court’s stay

15

order to dismiss Sonner’s claims, the State filed a motion for reconsideration in which it

16

noted its belief that the state district court was “premature” in requiring Sonner to

17

abandon all but the four claims and that, if Sonner was not allowed an opportunity to

18

show good cause and prejudice to overcome the procedural defaults, “the Nevada

19

Supreme Court will certainly remand this case to give him one.” ECF No. 136-6 at 5.

20

Sonner also filed a motion for reconsideration to which he attached a memorandum

21

arguing he could show good cause and actual prejudice to excuse the default of his

22

claims. ECF Nos. 136-13 and 14. While the motions were pending, Sonner filed an

23

amended petition in compliance with the state district court’s initial order. ECF Nos. 136-

24

16 through 19.

25
26

In its order ruling on the motions for reconsideration, the state district court stated
as follows:

27
28
7

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 8 of 10

The Court notes with regard to Petitioner’s Response to
Respondents’ Motion for Reconsideration and Petitioner’s Motion for
Reconsideration of Court Order, as well as Petitioner’s Motion for
Reconsideration, both parties have already set forth before this Court
memorandums regarding procedural default. In considering said
pleadings, this Court has reconsidered its previous Order in this case. . . .
and concludes again that there are four, and only four, grounds to be
considered by the Court. . . .

1
2
3
4
5

7

The Court has considered all other pending motions and
documents filed by both sides in this matter, including the procedural
default issues, and has determined again that the only four issues
appropriately before this Court are those set forth in Petitioner’s Amended
Petition for Writ of Habeas Corpus. . . . .

8

ECF No. 136-20 at 4-5. Thus, while Sonner was not afforded an evidentiary hearing on

9

whether he could meet the good cause and prejudice exception to Nev. Rev. Stat. §

6

10

34.726, this court’s previous findings the state district court failed to independently

11

assess whether his claims were barred under Nevada’s procedural rules and failed to

12

render a decision on cause and prejudice are not entirely accurate. See ECF No. 170 at

13

20-21.

14

In his brief on appeal to the Nevada Supreme Court, Sonner argued the

15

substantive merit of the four claims the state district court addressed on the merits. ECF

16

No. 137-21. He also argued that the state district court erred by summarily dismissing

17

his remaining claims without making specific findings as to procedural default or

18

conducting an evidentiary hearing on his good cause and prejudice claims. Id.

19

The Nevada Supreme Court held that the lower court erred by failing to apply the

20

procedural default to the four claims it decided on the merits. ECF No. 138-6 at 4-5.

21

After discussing and rejecting Sonner’s good cause arguments, the court concluded the

22

four claims were procedurally barred as untimely. Id. at 4-6. As to Sonner’s remaining

23

claims, the court affirmed the lower court’s procedural default decision, again rejecting

24

Sonner’s good cause arguments. Id. at 7. In footnotes, the court added that the district

25

court erred “to the extent [it] summarily dismissed those claims on the ground Sonner

26

was limited to solely raising the four federally unexhausted claims” but “that Sonner

27

failed to demonstrate that his good-cause claims warranted an evidentiary hearing.” Id.

28
8

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 9 of 10

Based on the foregoing, this court is no longer convinced that the Nevada courts’

1
2

application of its timeliness bar to Sonner’s claims fits in the “limited category” of

3

“exceptional cases in which exorbitant application of a generally sound rule renders the

4

state ground inadequate to stop consideration of a federal question.” Lee, 534 U.S. at

5

376. Sonner was no doubt abundantly aware that Nevada’s timeliness rule would apply

6

to the claims in his state exhaustion petition. Unlike the petitioner in Lee, he did not

7

substantially comply with the rule only to have the state court deny consideration of his

8

federal claims based on an unforeseeable or “persnickety” application of the rule. At

9

most, the Nevada courts failed to strictly adhere to governing statutes and precedents in

10

applying the timeliness rule, but that is not sufficient to render the rule inadequate to bar

11

federal review. See Martin, 562 U.S. at 320 (noting that a procedural rule “ought not be

12

disregarded automatically upon a showing of seeming inconsistencies”).
Having reached this conclusion, the court is concerned about the scope of the

13
14

Ninth Circuit’s limited remand in this case. See United States v. Garcia-Beltran, 443

15

F.3d 1126, 1130 (9th Cir. 2006) (“The rule of mandate requires a lower court to act on

16

the mandate of an appellate court, without variance or examination, only execution.”).

17

Under the limited remand, this court is to consider the merits of the claims it previously

18

dismissed as untimely. See ECF Nos. 251 and 259. It is far from clear that this court is

19

permitted to revisit its procedural default rulings under the limited remand. Also, while a

20

reversal of this court’s prior procedural default ruling would apply to the vast majority, if

21

not all, of the claims it previously dismissed as untimely, it would also apply to claims

22

this court decided on the merits – i.e., claims clearly beyond the scope of the limited

23

remand. Accordingly, the court will deny respondents’ motion for reconsideration and,

24

instead, issue an indicative ruling under Fed. R. Civ. P. 62.1. 1

25
26
27

The court has considered and rejects Sonner’s argument that respondents’ motion for reconsideration
is untimely as to court’s procedural default ruling given that it was issued in 2013. Almost all the claims
to which the ruling applied were dismissed as untimely in the same 2013 order. Those claims were not
revived until October of 2019. ECF No. 259.
1

28
9

Case 2:00-cv-01101-KJD-DJA Document 280 Filed 03/17/21 Page 10 of 10

1
2
3
4
5
6
7
8
9

IT IS THEREFORE ORDERED that respondents’ motion for reconsideration
(ECF No. 269) is DENIED.
IT IS FURTHER ORDERED that the court issues the following indicative ruling
under Rule 62.1 regarding the respondents’ motion:
In its order of March 26, 2013 (ECF No. 170), this court erroneously
concluded that the Nevada timeliness bar (Nev. Rev. Stat. § 34.726) as applied
to the claims contained in Sonner’s state exhaustion petition was not adequate to
bar federal review. All of the claims in Sonner’s operative federal petition (ECF
No. 96), except for Claims G, H, I, M1, M3, N, GG, II, PP4, TT2, TT10, TT11, ZZ.
GGG, HHH, and KKK, are barred from federal review by the procedural default
doctrine absent a showing of cause and prejudice or a fundamental miscarriage
of justice.

10

This court will grant respondents’ motion for reconsideration as to this issue if the Ninth

11

Circuit elects to remand for that purpose after receiving notice of this order.

12
13
14
15
16

IT IS FURTHER ORDERED that respondents’ unopposed motion for extension
of time (ECF No. 276) is GRANTED nunc pro tunc as of November 16, 2020.
IT IS FURTHER ORDERED that petitioner’s motion for leave to file a sur-reply
(ECF No. 278) is GRANTED.
DATED THIS 17th day of March, 2021.

17
18

UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
10