Wentzell v. Neven et al

Filing 64

ORDER Granting Nunc Pro Tunc Respondents' 61 Motion for Leave to File a Late Reply. Respondents' 48 Motion to Dismiss is Granted to the extent that the amended petition is Dismissed with prejudice as procedurally barred. Petitioner is Denied a Certificate of Appealability. The Clerk shall enter judgment accordingly. Signed by Judge Roger L. Hunt on 3/23/2015. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CHRISTOPHER WENTZELL,

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Petitioner,

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vs.

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D.W. NEVEN, et al.,

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Case No. 2:10-cv-01024-RLH-GWF

Respondents.

ORDER

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This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a
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Nevada state prisoner represented by counsel. Pending before the Court is respondents’ motion to
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dismiss the amended petition. (ECF No. 48).
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I. Procedural History
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In the Sixth Judicial District Court for the State of Nevada, County of Humboldt, petitioner
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and two co-defendants were charged with solicitation to commit murder, principal to attempted
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murder, and principle to theft. (Exhibit 6).1 Pursuant to negotiations with the State, petitioner

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waived his right to a preliminary hearing and entered into a plea agreement. (Exhibits 4 & 5). On
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January 17, 1996, petitioner entered pleas of guilty to the following: Count I, solicitation to commit
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murder; Count II, principal to attempted murder; and Count III, principal to theft. (Exhibits 7 & 8).
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On April 29, 1996, the state district court sentenced petitioner to ten years on Counts I and III, and
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The exhibits referenced in this order are found in the Court’s record at ECF Nos. 39-42,
unless otherwise specified.

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twenty years on Count II, with all sentences running consecutively. (Exhibit 11). The judgment of

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conviction was entered on April 29, 1996. (Exhibit 13).

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On June 12, 1996, petitioner filed a “notice of appeal to modify sentence.” (Exhibit 16). On

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August 20, 1996, in Case No. 28882, the Nevada Supreme Court filed an order dismissing the

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appeal as untimely. (Exhibit 19).

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On January 13, 1997, petitioner filed a “petition for writ of error (coram nobis).” (Exhibit

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21). Petitioner claimed that his trial counsel was ineffective for failing to file a timely notice of

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appeal. Petitioner claimed that the court failed to advise him of his right to appeal or his right to an

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attorney on appeal during plea proceedings. Petitioner also claimed that the court failed to advise

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him of his collateral rights. On February 12, 1997, the state district court denied the petition for writ

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of error (coram nobis). (Exhibit 22).

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On June 18, 1997, petitioner filed a notice to seek a belated direct appeal. (Exhibit 23). By

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order filed November 7, 1997, in Case No. 30610, the Nevada Supreme Court dismissed the appeal

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for lack of jurisdiction. (Exhibit 25). Remittitur issued on December 1, 1997. (Exhibit 26).

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On February 11, 1998, petitioner dispatched a pro se federal habeas corpus petition to this

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Court and the petition was filed in Case No. CV-N-98-cv-00079-ECR-PHA. (Respondents’ Exhibit

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28). Petitioner raised three claims: (1) counsel was ineffective for failing to advise petitioner of his

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appellate rights; (2) petitioner was deprived of due process and equal protection due to the state

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district court’s failure to find that counsel was ineffective in failing to advise him of his appellate

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rights; and (3) counsel was ineffective for failing to advise the court that petitioner could not afford

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counsel on appeal. The State filed a motion to dismiss the petition as untimely. (Id.). On February

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12, 1999, the Magistrate Judge filed a report and recommendation finding that the petition was

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untimely. (Respondents’ Exhibit 40). On March 12, 1999, the late United States District Judge

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Edward C. Reed issued an order approving and adopting the report and recommendation.

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(Respondents’ Exhibit 43). Judgment was entered on March 12, 1999. (Respondents’ Exhibit 44).

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Petitioner filed a notice of appeal and request for certificate of appealability. (Respondents’

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Exhibits 46 & 47). This Court denied the request for a certificate of appealability. (Respondents’

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Exhibit 48). The Ninth Circuit Court of Appeals also denied petitioner’s request for a certificate of
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appealability. The United States Supreme Court denied the petition for writ of certiorari. (Docket,

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Case No. CV-N-98-cv-00079-ECR-PHA).

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On July 15, 1999, petitioner filed a motion to vacate judgment of conviction in the Sixth

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Judicial District Court for the State of Nevada. (Exhibit 31). On October 21, 1999, the state district

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court denied the motion. (Exhibit 34).

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On January 7, 2000, petitioner filed a second post-conviction habeas petition and a

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memorandum of points and authorities in support of the petition in the state district court. (Exhibits

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35 & 36). On August 30, 2000, the state district court denied the petition. (Exhibit 43). Petitioner

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appealed. (Exhibit 44). On February 14, 2002, in Case No. 36739, the Nevada Supreme Court

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affirmed the denial of post-conviction habeas petition. (Exhibit 52).
On September 11, 2008, petitioner filed a third post-conviction habeas petition in the Sixth

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Judicial District Court. (Exhibit 64). The State filed an answer to the petition, which included a

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motion to dismiss. (Exhibit 70). Petitioner filed a reply and opposition. (Exhibit 71). On June 22,

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2009, the state district court granted the State’s motion to dismiss, in part, and granted the petition,

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in part. (Exhibit 72). The state district court found the petition untimely and successive. (Id.).

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Despite the fact that the petition was untimely and successive, the court found that state law barred

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petitioner’s conviction for both solicitation to commit murder and principal to attempted murder.

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(Id.). The state district court dismissed Count I, solicitation to commit murder. (Id.). An amended

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judgment of conviction was filed on June 30, 2009. (Exhibit 73).

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Petitioner filed two notices of appeal. The first notice of appeal was filed on July 13, 2009,

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seeking to appeal the state district court’s order granting in part and denying in part, the habeas

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petition. (Exhibit 74). Petitioner’s second notice of appeal, filed July 15, 2009, was a direct appeal

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from the amended judgment of conviction. (Exhibit 75).

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In the appeal from the amended judgment of conviction, in Case No. 54189, on August 25,

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2009, the Nevada Supreme Court dismissed the appeal. (Exhibit 78). The Nevada Supreme Court

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ruled that: “Because the amended judgment of conviction did not otherwise alter the judgment of

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conviction, appellant is not an aggrieved party. Only an aggrieved party may appeal. NRS

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177.015.” (Id., at p. 1). The Court further ruled that, to the extent petitioner sought to appeal from
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the original judgment of conviction, the notice of appeal was untimely because it was filed more

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than 13 years after entry of the original judgment of conviction. (Id., at pp. 1-2). Remittitur issued

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on September 22, 2009. (Exhibit 81).

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In the appeal from the district court’s order granting in part and denying in part the habeas

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petition, on February 4, 2010, in Case No. 54171, the Nevada Supreme Court found that the petition

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was subject to procedural bars as untimely, successive, and an abuse of the writ. (Exhibit 82). The

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Court further found that petitioner had not established good cause or actual innocence to overcome

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the procedural bars. (Id.). The Nevada Supreme Court affirmed the judgment of the state district

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court. (Id.). Remittitur issued on March 2, 2010. (Exhibit 83).

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On June 23, 2010, petitioner dispatched a pro se federal habeas petition to this Court, which

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was filed in the instant case. (Petition, ECF No. 3, at p. 1, item 5). In the petition, petitioner raised

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42 claims, including ineffective assistance of counsel claims for failing to advise petitioner of and

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perfect a direct appeal from the conviction, failing to advise of the facts and law causing petitioner’s

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guilty plea to be unknowing, unintelligent and involuntary, and for failing to tell petitioner that he

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could not be convicted of both solicitation to commit murder and attempted murder. (ECF No. 3).

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On July 9, 2010, this Court dismissed the petition as untimely pursuant to 28 U.S.C. § 2244(d), and

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alternatively, as a second or successive petition pursuant to 28 U.S.C. § 2244(b). (ECF No. 2). The

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Court’s order also denied petitioner a certificate of appealability. (Id.). The Clerk entered judgment

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on July 9, 2010. (ECF No. 4). Petitioner appealed this Court’s order and judgment. (ECF No. 5).

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On January 21, 2011, the Ninth Circuit Court of Appeals granted petitioner a certificate of

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appealability on two issues: (1) Whether the district court erred in summarily denying the petition as

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untimely without first offering appellant an opportunity to justify the facially untimely filing; and (2)

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whether the petition was properly dismissed on the alternative grounds as an unauthorized second or

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successive petition, in light of the amended judgment. (ECF No. 10). The panel appointed counsel

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to represent petitioner. (ECF No. 10, at p. 2). By order filed January 27, 2011, this Court appointed

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the Federal Public Defender to represent petitioner in the appeal. (ECF No. 11).

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On April 2, 2012, the Ninth Circuit Court of Appeals filed a published opinion. Wentzell v.
Neven, 674 F.3d 1124 (9th Cir. 2012); ECF No. 16. The Court of Appeals ruled that this Court erred
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when it dismissed the petition as untimely without first providing petitioner notice and an

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opportunity to respond. Wentzell, 674 F.3d at 1126. The Court of Appeals also ruled that the

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second federal habeas petition was not successive because it attacked a separate judgment than the

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first federal habeas petition – the amended judgment of conviction. Id. at 1127-28.

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Respondents filed a petition for rehearing and suggestion for rehearing en banc, which the

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Ninth Circuit denied on June 22, 2012. (ECF No. 18). Respondents filed a petition for a writ of

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certiorari in the United States Supreme Court. On May 13, 2013, the United States Supreme Court

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denied respondents’ petition for a writ of certiorari. (ECF No. 26). The Ninth Circuit issued its

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mandate on June 6, 2013. (ECF No. 27). This Court filed an order on June 11, 2013, reopening this

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case and directing the filing of an amended petition. (ECF No. 30).
On February 11, 2014, acting through counsel, petitioner filed an amended petition (ECF

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No. 43) and exhibits in support of the amended petition (ECF Nos. 39-42). The amended petition

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contains two grounds for relief. In Ground 1, petitioner alleges that trial counsel was ineffective for

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failing to inform him of his right to file a direct appeal, by failing to consult with petitioner

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regarding his substantive appellate rights and state law procedural time limitations, and by failing to

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file a notice of appeal despite repeated requests to do so by petitioner and his family. (ECF No. 43,

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at pp. 10-13). In Ground 2, petitioner alleges that his guilty pleas were not knowingly and

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voluntarily entered because they were not the product of effective assistance of counsel and because

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petitioner was not properly informed of the charges against him by the charging document or by the

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state district court’s plea canvass. (Id., at pp. 13-17). On April 30, 2014, respondents filed a motion

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to dismiss the amended petition. (ECF No. 48). Petitioner filed a response to the motion to dismiss

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on July 23, 2014. (ECF No. 56). Respondents filed a reply to the response on August 13, 2014,

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along with a motion to file a late pleading. (ECF Nos. 61 & 62). Respondents’ motion for leave to

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file a late reply is granted, nunc pro tunc.

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II. Discussion

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Respondents assert that the claims in the amended petition were procedurally defaulted on

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independent and adequate state grounds, and that therefore the claims are procedurally barred from

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federal review.
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A. Procedural Default Principles

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In Coleman v. Thompson, 501 U.S. 722 (1991), the United States Supreme Court held that a

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state prisoner’s failure to comply with the state’s procedural requirements in presenting his claims is

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barred from obtaining a writ of habeas corpus in federal court by the adequate and independent state

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ground doctrine. Coleman, 501 U.S. at 731-32 (“Just as in those cases in which a state prisoner fails

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to exhaust state remedies, a habeas petitioner who has failed to meet the State’s procedural

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requirements for presenting his federal claims has deprived the state courts of an opportunity to

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address those claims in the first instance.”). Where such a procedural default constitutes an

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adequate and independent state ground for the denial of habeas corpus relief, the default may be

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excused only “if a constitutional violation has probably resulted in the conviction of one who is

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actually innocent,” or if the prisoner demonstrates cause for the default and prejudice resulting from

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it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

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A state procedural bar is “adequate” if it is “clear, consistently applied, and well-established

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at the time of the petitioner’s purported default.” Calderon v. United States District Court (Bean),

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96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)); see

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also King v. Lamarque, 464 F.3d 963, 966-67 (9th Cir. 2006). A state procedural bar is

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“independent” if the state court “explicitly invokes the procedural rule as a separate basis for its

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decision.” Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). A state court’s decision is not

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“independent” if the application of the state’s default rule depends on the consideration of federal

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law. Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000); see also Coleman, 501 U.S. at 735

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(there is no independent state ground for a state court’s application of procedural bar when the

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court’s reasoning rests primarily on federal law or is interwoven with federal law).

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B. The Issues Raised in the Federal Amended Petition Were Procedural Defaulted in
State Court on Independent and Adequate State Grounds

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In the amended petition, petitioner asserts that the claims raised in the amended federal
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petition were raised in his third state post-conviction habeas petition filed in the Sixth Judicial
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District Court for the State of Nevada. (ECF No. 43, at p. 8 (citing Exhibits 64 & 67)). In an order
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filed February 4, 2010, the Nevada Supreme Court ruled that the third state post-conviction habeas
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petition was untimely pursuant to NRS 34.726(1) and successive pursuant to NRS 34.810(2).

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(Exhibit 82).

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A state procedural bar is “adequate” if it is “clear, consistently applied, and well-established

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at the time of the petitioner’s purported default.” Calderon v. United States District Court (Bean),

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96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). In

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Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), the Ninth Circuit announced a burden-

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shifting test for analyzing adequacy. Under Bennett, the State carries the initial burden of

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adequately pleading “the existence of an independent and adequate state procedural ground as an

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affirmative defense.” Id. at 586. The burden then shifts to the petitioner “to place that defense in

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issue,” which the petitioner may do “by asserting specific factual allegations that demonstrate the

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inadequacy of the state procedure, including citation to authority demonstrating inconsistent

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application of the rule.” Id. However, where the Ninth Circuit has already made a determination on

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the adequacy of a rule, the petitioner must cite cases “demonstrating subsequent inconsistent

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application” to meet his burden under Bennett. King v. LaMarque, 464 F.3d 963, 967 (9th Cir.

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2006). If the petitioner meets this burden, “the ultimate burden” of proving the adequacy of the

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state bar rests with the State, which must demonstrate “that the state procedural rule has been

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regularly and consistently applied in habeas actions.” Bennett v. Mueller, 322 F.3d 586; see also

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King v. Lamarque, 464 F.3d 963, 966-67 (9th Cir. 2006).

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As stated, by order filed February 4, 2010, the Nevada Supreme Court ruled that petitioner’s

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third state post-conviction habeas petition was untimely under NRS 34.726(1) and successive under

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NRS 34.810(2). (Exhibit 82). The Ninth Circuit has held that the Nevada Supreme Court’s

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application of the timeliness rule in NRS 34.726(1) is an independent and adequate state law ground

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for procedural default. Moran v. McDaniel, 80 F.3d 1261, 1268-70 (9th Cir. 1996); see also Valerio

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v. Crawford, 306 F.3d 742, 778 (9th Cir. 2002). The Ninth Circuit also has held that, at least in non-

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capital cases, application of the successive petition rule of NRS 34.810(2) is an independent and

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adequate state ground for procedural default. Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003);

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Bargas v. Burns, 179 F.3d 1207, 1210-12 (9th Cir. 1999).

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In his opposition, petitioner states that the Nevada Supreme Court’s procedural default of his

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claims was inadequate to foreclose federal habeas review. (ECF No. 56, at pp. 8-12). However,

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petitioner fails to cite any cases or make any specific factual allegations showing subsequent

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inconsistent application of the procedural bars at NRS 34.726(1) and NRS 34.810(2). Therefore

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petitioner has not met his burden of calling into question the adequacy of the state court procedural

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rules at NRS 35.726(1) and NRS 35.810(2). See Bennett v. Mueller, 322 F.3d 586; see also King v.

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Lamarque, 464 F.3d at 966-67.

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Moreover, petitioner’s discussion of the purported inadequacy of the procedural bar at NRS
177.015 is not relevant, because the Nevada Supreme Court’s order resolving petitioner’s third state

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post-conviction petition did not rely on NRS 177.015. (ECF No. 56, at pp. 7-10; Exhibit 82).

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Petitioner’s assertion that the Nevada Supreme Court’s order, filed August 25, 2009, resolved his

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third state post-conviction habeas petition is incorrect. Rather, the Nevada Supreme Court’s order

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filed August 25, 2009, resolved the direct appeal from the amended judgment of conviction.

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(Exhibit 78). That order did invoke the procedural bar of NRS 177.015, but that order is not at

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issue, because petitioner clearly states that the claims in his federal amended petition are based on

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his third state post-conviction habeas petition, which was resolved by the Nevada Supreme Court’s

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order filed February 4, 2010. (ECF No. 43, at p. 8; Exhibit 82).

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This Court finds that the Nevada Supreme Court’s application of the procedural bars of NRS

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34.726(1) and NRS 34.810(2) in its order filed February 4, 2010 constitutes independent and

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adequate grounds for the Court’s denial of petitioner’s appeal from the state district court’s order

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resolving the third state post-conviction habeas petition. Because the federal habeas petition asserts

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the same claims made in the procedurally defaulted third state post-conviction habeas petition, the

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federal petition is procedurally barred from federal review and will be dismissed with prejudice

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unless petitioner can show cause and prejudice to excuse the procedural bar, or that failure to

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consider the defaulted claim will result in a fundamental miscarriage of justice.

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C. Cause and Prejudice/Fundamental Miscarriage of Justice

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To overcome a claim that was procedural defaulted in state court, a petitioner must establish

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either (1) cause for the default and prejudice attributable thereto or (2) that failure to consider the
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defaulted claims will result in a “fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255,

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262 (1989) (citations omitted).

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To prove a “fundamental miscarriage of justice,” petitioner must show that the constitutional

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error of which he complains “has probably resulted in the conviction of one who is actually

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innocent.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Murray v. Carrier, 477 U.S.

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at 496). “Actual innocence” is established when, in light of all of the evidence, “it is more likely

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than not that no reasonable juror would have convicted [the petitioner].” Bousley v. United States,

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523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). “‘[A]ctual innocence’

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means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. at 623.

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Petitioner can make a showing of “actual innocence” by presenting the court with new evidence

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which raises a sufficient doubt as “to undermine confidence in the result of the trial.” Schlup v.

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Delo, 513 U.S. at 324. In the instant case, petitioner has not made a showing of actual innocence or

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otherwise shown that a fundamental miscarriage of justice will occur if his claims are barred from

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federal review.

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To demonstrate cause for a procedural default, the petitioner must “show that some objective

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factor external to the defense impeded” his efforts to comply with the state procedural rule. Murray,

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477 U.S. at 488. For cause to exist, the external impediment must have prevented the petitioner

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from raising the claim. See McClesky v. Zant, 499 U.S. 467, 497 (1991). With respect to the

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prejudice prong, the petitioner bears “the burden of showing not merely that the errors [complained

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of] constituted a possibility of prejudice, but that they worked to his actual and substantial

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disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” White v.

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Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982). If

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the petitioner fails to show cause, the court need not consider whether the petitioner suffered actual

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prejudice. Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982); Roberts v. Arave, 847 F.2d 528, 530 n.3

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(9th Cir. 1988). In the instant case, petitioner has not addressed, much less proven, the existence of

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cause and prejudice to excuse the procedural default. This Court finds that the issues raised in the

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federal amended petition were procedurally defaulted in state court, and petitioner has failed to

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show either a fundamental miscarriage of justice, or cause and prejudice to excuse the procedural
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default. As such, the amended petition is barred from review by this Court and will be dismissed

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with prejudice.

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III. Certificate of Appealability

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District courts are required to rule on the certificate of appealability in the order disposing of

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a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and

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request for certificate of appealability to be filed. Rule 11(a). In order to proceed with his appeal,

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petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th

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Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v.

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Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a substantial

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showing of the denial of a constitutional right” to warrant a certificate of appealability. Id.; 28

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U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The petitioner must

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demonstrate that reasonable jurists would find the district court's assessment of the constitutional

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claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold

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inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of

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reason; that a court could resolve the issues differently; or that the questions are adequate to deserve

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encouragement to proceed further. Id. In this case, no reasonable jurist would find this Court’s

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dismissal of the amended petition as procedurally barred debatable or wrong. The Court therefore

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denies petitioner a certificate of appealability.

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IV. Conclusion

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IT IS THEREFORE ORDERED that respondents’ motion to file a late reply (ECF No. 61)
is GRANTED nunc pro tunc.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 48) is

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GRANTED to the extent that the amended petition is DISMISSED WITH PREJUDICE as

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procedurally barred.

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IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF

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APPEALABILITY.

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IT IS FURTHER ORDERED that the Clerk of Court SHALL ENTER JUDGMENT
ACCORDINGLY.
23rd
Dated this ______ day of March, 2015.

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ROBERT L. HUNT
UNITED STATES DISTRICT JUDGE

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