Leavitt v. Neven et al

Filing 157

ORDER denying 151 Motion for Reconsideration; ORDER granting 152 Motion to Extend Time nunc pro tunc 9/13/2018; ORDER granting 154 Motion to Extend Time; ORDER granting 156 Motion to Extend Time; Respondents' answer due to 54 Amended Petition 12/3/2018. Petitioner shall have 45 days from the date on which the answer is served to file a reply. Signed by Judge James C. Mahan on 10/22/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CODY CORY LEAVITT,

Case No. 2:12-cv-00987-JCM-CWH
Petitioner,

v.

ORDER

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DWIGHT NEVEN, et al.,
Respondents.

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This is a habeas corpus action brought under 28 U.S.C. § 2254. On August 3,

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2018, this court entered an order dismissing as procedurally defaulted Grounds 1, 3, 4,

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6, a portion of Ground 7, and Ground 8 of Leavitt’s amended petition (ECF No. 54). ECF

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No. 150. The court arrived at that decision after concluding that Leavitt had failed to

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demonstrate cause and prejudice or a fundamental miscarriage of justice in relation to

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his defaults. Id. On August 15, 2018, Leavitt filed a motion asking this court to

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reconsider its decision. ECF No. 151. For the reasons that follow, the motion is denied.

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First, Leavitt argues that, given the opportunity, he can demonstrate a

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fundamental miscarriage of justice based on his actual innocence. “To be credible, such

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a claim [of actual innocence] requires petitioner to support his allegations of

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constitutional error with new reliable evidence -- whether it be exculpatory scientific

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evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not

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presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Further, “the petitioner

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must show that it is more likely than not that no reasonable juror would have convicted

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him in light of the new evidence.” Id. at 327.

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In support of his actual innocence claim, Leavitt cites to evidence indicating that

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DNA samples in his case may have been contaminated. Such evidence, by itself, falls

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well short of establishing his actual innocence, especially in light of his plea of guilty to

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the relevant charge. Id. at 324 (“[A] substantial claim that constitutional error has caused

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the conviction of an innocent person is extremely rare.”). In addition, the evidence cited

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is hardly “new” inasmuch as it was presented in his first state post-conviction

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proceeding in 2010. ECF No. 63-5.

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Next, Leavitt claims that the state district court’s mishandling of his post-

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conviction petition was a “factor external to the defense [that] impeded [his] effort to

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comply with the State’s procedural rule.” ECF No. 151, p. 7-8. See Murray v. Carrier,

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477 U.S. 478, 488 (1986). He fails to address, however, why he failed to timely appeal

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the state district court’s dismissal of his petition. ECF No. 125, p. 2.

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Leavitt also argues that this court erred by not treating his unexhausted claims as

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technically exhausted in the first place, rather than having him return to state court,

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because state court remedies were no longer available under state law. Even if that is

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the case, however, Leavitt claims would nonetheless be subject to the procedural

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default doctrine. See Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007). His

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suggestion that the default of the claims could be excused based on the holdings in

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Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), is

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inaccurate because, as this court has previously pointed out, the default did not arise

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from his failure to present the claims in his in “initial-review collateral proceedings.” ECF

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No. 150, p. 3 (citing Martinez, 566 U.S. at 16).

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Having found no grounds reconsideration, the court stands by its prior decision.

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IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF

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No. 151) is DENIED.

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

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(ECF No. 152) is GRANTED nunc pro tunc as of September 13, 2018. Respondents’

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second motion for extension of time (ECF No. 154) is also GRANTED. Respondents'

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shall have until December 3, 2018, to answer the remaining claims in the amended

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petition (ECF No. 54). To the extent they have not done so already, respondents shall

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comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States

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District Courts. Petitioner shall have 45 days from the date on which the answer is

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served to file a reply.

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IT IS FURTHER ORDERED that petitioner’s’ motion for extension of time (ECF
No. 156) is GRANTED.
DATED October 22, 2018.
THIS ___ day of ________, 2018.

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UNITED STATES DISTRICT JUDGE

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