Combs v. State of Nevada et al

Filing 103

ORDER. IT IS ORDERED that grounds 1.1, 1.4 through 1.14, 1.16 through 1.20, 2 through 4, 6, and 9 through 11 of 23 the amended petition are DISMISSED. IT FURTHER IS ORDERED that 102 respondents' motion for extension of time to answer r emaining claims (first request) is GRANTED. Respondents will have through 7/18/2018, to file an answer to the remaining claims of 23 the amended petition. Signed by Chief Judge Gloria M. Navarro on 6/30/2018. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRETT COMBS,

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Case No. 2:11-cv-00528-GMN-VCF
Petitioner,

ORDER

v.
STATE OF NEVADA, et al.,

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Respondents.

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The court reopened this action and directed petitioner, now represented by counsel, to

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declare what he wants to do with the grounds that the court earlier had found to be unexhausted.

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Order (ECF No. 100). Petitioner has filed a response (ECF No. 101). He asks the court to

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consider the unexhausted grounds on their merits. Petitioner has not given the court good cause

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to do that. The court accepts petitioner’s alternate proposal and dismisses the unexhausted

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grounds.

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If petitioner returned to the state courts, he would be facing procedural bars such as Nev.

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Rev. Stat. § 34.726 (one-year time limit) and Nev. Rev. Stat. § 34.810 (bar of second or

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successive petitions). If petitioner can show good cause and prejudice, then the state courts can

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excuse those procedural bars and consider the petition on the merits. If petitioner cannot show

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good cause and prejudice, then the state courts would dismiss the petition, and the claims in the

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state petition would be subject to procedural default in federal court. Petitioner essentially is
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arguing that he cannot show cause and prejudice in the state courts and that he can show cause

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and prejudice in this court to excuse the procedural default.

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Grounds 1.1, 1.4 through 1.14, and 1.16 through 1.20 are claims of ineffective assistance

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of trial counsel. Petitioner raised these grounds in his state post-conviction habeas corpus

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proceeding. The state district court ruled that the petition, including these grounds, was without

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merit. Petitioner did not exhaust these grounds because he did not raise them in his appeal to the

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Nevada Supreme Court. Petitioner now argues that appointed post-conviction appellate counsel

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provided ineffective assistance by not raising them in that appeal.

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Petitioner bases his argument upon Martinez v. Ryan, 566 U.S. 1 (2012). However, the
holding of Martinez is not broad enough to encompass the claims in ground 1.

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[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trialcounsel claim in a collateral proceeding, a prisoner may establish cause for a
default of an ineffective-assistance claim in two circumstances. The first is where
the state courts did not appoint counsel in the initial-review collateral proceeding
for a claim of ineffective assistance at trial. The second is where appointed
counsel in the initial-review collateral proceeding, where the claim should have
been raised, was ineffective under the standards of Strickland v. Washington, 466
U.S. 668 (1984). To overcome the default, a prisoner must also demonstrate that
the underlying ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has some merit.
Cf. Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for
certificates of appealability to issue).

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Id. at 14 (emphasis added). The “initial-review collateral proceeding,” in terms more commonly

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used in Nevada, is the post-conviction proceeding in the state district court. Martinez specifically

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does not apply to an appeal from the denial of a state post-conviction habeas corpus petition. Id.

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at 16. In that situation, the basic rule of Coleman v. Thompson, 501 U.S. 722 (1991), still

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applies. Petitioner has no right, and thus no addressable claim in federal habeas corpus, to

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effective assistance of post-conviction counsel. Id. at 752.1 Consequently, petitioner has not

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shown cause to excuse any procedural default of the claims in ground 1.

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Grounds 2 through 4, 6, and 9 through 11 are claims of constitutional errors that occurred

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before or during the proceedings in trial court. Petitioner did not exhaust these grounds because

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The procedural bar in Coleman is not distinguishable from what happened in this case. Coleman’s appointed state
post-conviction counsel failed to file a timely appeal from the denial of his state post-conviction petition, which in
turn led to the procedural default of Coleman’s grounds. 501 U.S. at 752.

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he did not raise them on direct appeal to the Nevada Supreme Court. Martinez does not apply to

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these grounds because they are not claims of ineffective assistance of trial counsel. Petitioner is

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correct that ineffective assistance of counsel on direct appeal can be cause to excuse a procedural

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default. Response, at 2-3 (quoting Coleman, 501 U.S. at 754) (ECF No. 101). However,

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ineffective assistance of counsel on direct appeal also can be cause to excuse the state-law

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procedural bars of Nev. Rev. Stat. §§ 34.726 and 34.810.2 Petitioner would need to present this

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argument to the state courts first. Given that he is unwilling to do that, this court will not consider

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the argument now. Instead, the court dismisses grounds 2 through 4, 6, and 9 through 11.

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Respondents have filed a motion for extension of time to answer remaining claims (first
request) (ECF No. 102). The court grants this motion.

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IT THEREFORE IS ORDERED that grounds 1.1, 1.4 through 1.14, 1.16 through 1.20, 2
through 4, 6, and 9 through 11 of the amended petition (ECF No. 23) are DISMISSED.

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IT FURTHER IS ORDERED that respondents’ motion for extension of time to answer

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remaining claims (first request) (ECF No. 102) is GRANTED. Respondents will have through

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July 18, 2018, to file an answer to the remaining claims of the amended petition (ECF No. 23).

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DATED: June 30, 2018

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______________________________
GLORIA M. NAVARRO
Chief United States District Judge

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In contrast, the Nevada Supreme Court has not adopted the rule of Martinez. In Nevada courts, ineffective
assistance of post-conviction counsel is not good cause to excuse a procedural bar of a claim of ineffective assistance
of trial counsel. Brown v. McDaniel, 331 P.3d 867 (Nev. 2014).

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