Bousley v. Neven et al

Filing 28

ORDER that petitioners application for a certificate of appealability is DENIED. Signed by Judge Gloria M. Navarro on 12/12/2013. (Copies have been distributed pursuant to the NEF - CC: USCA via CM/ECF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTOINE BOUSLEY,

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Petitioner,
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vs.
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D.W. NEVEN, et al.,
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Respondents.
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____________________________________/

Appeal No. 13-17488
2:11-cv-01751-GMN-GWF
ORDER

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This closed action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C.

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§ 2254, by a Nevada state prisoner. On February 19, 2013, this Court granted respondents’ motion

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to dismiss and dismissed this action with prejudice, because all grounds of the petition were

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procedurally barred. (ECF No. 20). On August 22, 2013, petitioner filed a motion for

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reconsideration pursuant to Rule 60(b). (ECF No. 22). By order filed November 22, 2013, this

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Court denied petitioner’s motion for reconsideration. (ECF No. 24). Petitioner filed a notice of

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appeal on December 4, 2013. (ECF No. 25). On December 11, 2013, the Ninth Circuit Court of

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Appeals remanded the matter to this Court for the limited purpose of determining whether a

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certificate of appealability should be issued.

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In order to proceed with his appeal, petitioner must receive a certificate of appealability

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(“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d

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946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001).

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Generally, a petitioner must make “a substantial showing of the denial of a constitutional right” to

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warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,

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483-84 (2000). “The petitioner must demonstrate that reasonable jurists would find the district

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court's assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at

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484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the

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issues are debatable among jurists of reason, that a court could resolve the issues differently, or that

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the questions are adequate to deserve encouragement to proceed further. Id.

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Where the court has dismissed a petitioner’s habeas corpus petition on procedural grounds,

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the determination whether a certificate of appealability (“COA”) should issue becomes a two-part

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test. The Supreme Court has held that under such circumstances:

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When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.

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Slack, 529 U.S. at 484. Therefore, in order to obtain a COA in cases dismissed on procedural

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grounds, petitioner has the burden of demonstrating both that he was denied a valid constitutional

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right, and that jurists of reason would find it debatable whether the court’s procedural ruling was

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correct. In cases where there is a plain procedural bar to a petitioner’s claims and the district court is

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correct to invoke that procedural bar to dispose of the case, “a reasonable jurist could not conclude

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either that the district court erred in dismissing the petition or that the petitioner should be allowed to

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proceed further.” Id. Under those circumstances “no appeal would be warranted.” Id.

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In the instant case, the Nevada Supreme Court applied NRS 34.726(1) and ruled that

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petitioner’s claims in the state post-conviction habeas petition were untimely filed. The Nevada

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Supreme Court therefore refused to substantively consider any of petitioner’s claims. (Exhibit 36).1

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The claims in petitioner’s state post-conviction habeas petition are the same claims raised in the

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federal petition in this Court. (ECF No. 1 & Exhibit 24). In the order filed February 19, 2013, this

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Court determined that the Nevada Supreme Court’s application of the procedural bar of NRS

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34.726(1) was an independent of any federal question and adequate to support the judgment. (ECF

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The exhibits referenced in this order are found in the Court’s record at ECF Nos. 5-6.
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No. 20, at pp. 3-4). See Coleman v. Thompson, 501 U.S. 722, 730-31 (1991); Murray v. Carrier,

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477 U.S. 478, 485 (1986); Moran v. McDaniel, 80 F.3d 1261, 1268-70 (9th Cir. 1996).

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This Court further determined that petitioner did not demonstrate cause and prejudice to

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excuse the procedural default of his claims because petitioner failed to show that some objective

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factor external to the defense impeded his efforts to comply with the state procedural rule. (ECF No.

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20, at pp. 4-6). See Murray, 477 U.S. at 488. Specifically, petitioner argued that his state petition

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should have been deemed timely by the Nevada courts pursuant to the “mailbox rule.” Pursuant to

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the “mailbox rule,” federal courts deem the filing date of a document as the date it was given to

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prison officials for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988). While the Ninth Circuit has

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held that the mailbox rule applies to state as well as federal filings in computing the timeliness of the

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federal petition under the AEDPA, the Ninth Circuit has also acknowledged that Nevada does not

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recognize the prison mailbox rule for state post-conviction petitions in determining the timeliness of

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a state petition under state law. See Koerner v. Grigas, 328 F.3d 1039, 1044 n.1 (9th Cir. 2003)

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(“because Nevada does not recognize a prison mailbox rule for post-conviction petitions, [a] petition

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[is] not filed under Nevada law until actually received by the clerk of court”) (citing Gonzales v.

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State, 118 Nev. 590, 592 (2002) (Nevada does not recognize the “prison mailbox rule” and has

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expressly rejected the rule for purposes of determining the filing date of state post-conviction habeas

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petitions). Petitioner was required to comply with the Nevada’s state procedural rules in filing his

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state habeas petition. Therefore, this Court determined that petitioner failed to demonstrate cause for

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the procedural default in state court on the basis of untimeliness. (ECF No. 20, at p. 5). Because all

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grounds of the federal petition were procedurally defaulted in state court on independent and

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adequate state law grounds, and because petitioner filed the show cause and prejudice to excuse the

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procedural default, the federal petition was procedurally barred from review by this Court.

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Accordingly, the petition was dismissed with prejudice. (ECF No. 20, at pp. 5-6). In considering the

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application for a certificate of appealability, this Court now finds that jurists of reason would not find

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it debatable whether the petition states a valid claim of the denial of a constitutional right.

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Moreover, this Court finds that jurists of reason would not find it debatable whether this Court was

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correct in its ruling that all grounds of the federal petition were procedurally barred and subject to

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dismissal.

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Regarding petitioner’s Rule 60(b) motion for reconsideration, petitioner argued, for the first

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time, that he was unable to file a timely state post-conviction habeas petition because his state

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appointed counsel failed to provide him with court files until December 2, 2009, four months before

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he filed his untimely state habeas petition. (ECF No. 22). In his opposition to the motion to dismiss,

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petitioner did not argue that he had any difficulties obtaining court files from his state appointed

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attorney. (ECF No. 16). Because petitioner may not raise new arguments in a motion for

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reconsideration, the Court denied the motion. (ECF No. 24).
Additionally, in the Rule 60(b) motion, petitioner repeated arguments made in his opposition,

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that respondents incorrectly calculated the date on which the Nevada Supreme Court issued

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remittitur, and that he was entitled to application of the “mailbox rule” regarding his state habeas

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petition. Those arguments were addressed and rejected in the Court’s order of February 13, 2013.

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(ECF No. 20).

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Finally, in his Rule 60(b) motion, petitioner argued that he was actually innocent. “‘[A]ctual

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innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523

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U.S. 614, 623 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). “Actual innocence does

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not merely require a showing that a reasonable doubt exists in light of the new evidence, but rather

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that no reasonable juror would have found the defendant guilty.” Schlup v. Delo, 513 U.S. 298, 327

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(1995). A petitioner must support his allegation of constitutional error with new reliable evidence

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such as “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

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evidence” that was not presented at trial. Id. at 324. Bare allegations unsupplemented by evidence

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do not tend to establish actual innocence sufficient to overcome procedural default. Thomas v.

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Goldsmith, 979 F.2d 746, 750 (9th Cir. 1992). Petitioner failed to present any new evidence that

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would demonstrate that no reasonable juror would have found him guilty of his crimes to support a
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claim of actual innocence. As such, this Court denied petitioner’s Rule 60(b) motion for

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reconsideration. (ECF No. 24). In considering the application for a certificate of appealability, this

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Court now finds that jurists of reason would not find it debatable whether the petition states a valid

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claim of the denial of a constitutional right. Additionally, this Court finds that jurists of reason

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would not find it debatable whether this Court was correct in denying petitioner’s Rule 60(b) motion

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for reconsideration. No reasonable jurist could conclude that this Court’s orders were erroneous.

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IT IS THEREFORE ORDERED that petitioner’s application for a certificate of

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appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall transmit a copy of this order to

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the United States Court of Appeals for the Ninth Circuit.

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DATED this 12th day of December, 2013.

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Gloria M. Navarro
United States District Judge

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