Moore v. Masto et al

Filing 143

ORDER Denying 140 Motion for Reconsideration. IT IS FURTHER ORDERED that Respondents shall, within 120 days from the date of this order, file an answer, responding to the remaining claims in Petitioner's second amended habeas petition. Signed by Judge James C. Mahan on 4/12/2021. (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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RANDOLPH L. MOORE,

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Petitioner,

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Case No. 2:13-cv-00655-JCM-DJA

v.

ORDER

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WILLIAM GITTERE, et al.,
Respondents.

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In this capital habeas corpus action, the Court ruled on Respondents’ motion to

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dismiss (ECF No. 71) on February 26, 2021. See Order entered February 26, 2021

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(ECF No. 139). On March 4, 2021, the petitioner, Randolph L. Moore, represented by

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appointed counsel, filed a motion for reconsideration of the order resolving the motion to

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dismiss (ECF No. 140). Respondents filed an opposition to that motion on March 18,

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2021 (ECF No. 141), and Moore filed a reply on March 23, 2021 (ECF No. 142). The

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Court will deny Moore’s motion for reconsideration and will reset the deadline for

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Respondents to file an answer.

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A district court possesses “inherent procedural power to reconsider, rescind, or

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modify an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles v.

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Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (citations and internal

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quotation marks omitted); see also Fed. R. Civ. P. 54(b) (interlocutory orders “may be

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revised at any time before the entry of a judgment adjudicating all the claims and all the

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parties’ rights and liabilities”). “[A] motion for reconsideration should not be granted,

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absent highly unusual circumstances, unless the district court is presented with newly

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discovered evidence, committed clear error, or if there is an intervening change in the
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controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d

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873, 880 (9th Cir. 2009) (quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665

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(9th Cir. 1999).

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Moore’s motion for reconsideration focuses on Part IIIC of the February 26, 2021

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order, which concerns application of the procedural default doctrine, and which is as

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follows:

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C.

Procedural Default

A federal court will not review a claim for habeas corpus relief if the
decision of the state court denying the claim rested—or, in the case of a
technically exhausted claim, would rest—on a state law ground that is
independent of the federal question and adequate to support the
judgment. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). The
Court in Coleman stated the effect of a procedural default as follows:
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice.
Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485
(1986).
A state procedural bar is “independent” if the state court explicitly
invokes the procedural rule as a separate basis for its decision. McKenna
v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995). A state court’s decision is
not “independent” if the application of a state’s default rule depends on a
consideration of federal law. Park v. California, 202 F.3d 1146, 1152 (9th
Cir. 2000). Also, if the state court’s decision fails “to specify which claims
were barred for which reasons,” the Ninth Circuit has held that the
ambiguity may serve to defeat the independence of the state procedural
bar. Valerio v. Crawford, 306 F.3d 742, 775 (9th Cir. 2002); Koerner v.
Grigas, 328 F.3d 1039, 1050 (9th Cir. 2003).
A state procedural rule is “adequate” if it is “clear, consistently
applied, and well-established at the time of the petitioner’s purported
default.” Calderon v. United States Dist. Court (Bean), 96 F.3d 1126, 1129
(9th Cir. 1996) (citation and internal quotation marks omitted). A
discretionary state procedural rule can serve as an adequate ground to
bar federal habeas review because, even if discretionary, it can still be
“firmly established” and “regularly followed.” Beard v. Kindler, 558 U.S. 53,
60–61 (2009). Also, a rule is not automatically inadequate “upon a
showing of seeming inconsistencies” given that a state court must be
allowed discretion “to avoid the harsh results that sometimes attend
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consistent application of an unyielding rule.” Walker v. Martin, 562 U.S.
307, 320 (2011).
In Bennett v. Mueller, 322 F.3d 573, 585–86 (9th Cir. 2003), the
court of appeals announced a burden-shifting test for analyzing adequacy.
Under Bennett, the State carries the initial burden of adequately pleading
“the existence of an independent and adequate state procedural ground
as an affirmative defense.” Id. at 586. The burden then shifts to the
petitioner “to place that defense in issue,” which the petitioner may do “by
asserting specific factual allegations that demonstrate the inadequacy of
the state procedure, including citation to authority demonstrating
inconsistent application of the rule.” Id. Assuming the petitioner has met
his burden, “the ultimate burden” of proving the adequacy of the state bar
rests with the State, which must demonstrate “that the state procedural
rule has been regularly and consistently applied in habeas actions.” Id.
The Ninth Circuit Court of Appeals has held Nev. Rev. Stat. §
34.810 to be inadequate to bar federal review in capital habeas cases.
See Valerio, 306 F.3d at 778, Petrocelli v. Angelone, 248 F.3d 877, 888
(9th Cir. 2001), and McKenna, 65 F.3d at 1488–89. Moore’s reference to
these holdings is sufficient to place the adequacy of the bar in issue. The
relevant dates in McKenna and Petrocelli were 1983 and 1985. See
McKenna, 65 F.3d at 1487–88; Petrocelli, 248 F.3d at 886. The court in
Valerio found that the bar was inadequate as of 1990. Valerio, 306 F.3d at
778. Respondents have “the burden of demonstrating that, since Valerio,
state courts have begun to regularly and consistently apply § 34.810 to
habeas cases.” Riley v. McDaniel, 786 F.3d 719, 722 n.4 (9th Cir. 2015).
See also King v. LaMarque, 464 F.3d 963, 967 (9th Cir. 2006).
Respondents have not established the adequacy of § 34.810 as a
procedural bar.
On the other hand, the Ninth Circuit Court of Appeals has held Nev.
Rev. Stat. §§ 34.726 and 34.800 to be adequate to support application of
the procedural default doctrine. See Williams v. Filson, 908 F.3d 546,
579–80 (9th Cir. 2018); Ybarra v. McDaniel, 656 F.3d 984, 990 (9th Cir.
2011); Valerio, 306 F.3d at 778; Loveland v. Hatcher, 231 F.3d 640, 643
(9th Cir. 2000). Moran v. McDaniel, 80 F.3d 1261, 1268–70 (9th Cir.
1996). Moore does not place the adequacy of those rules at issue.
Accordingly, this court concludes that Nev. Rev. Stat. §§ 34.726 and
34.800 are adequate to support application of the procedural default
doctrine in this case.
To demonstrate cause for a procedural default, the petitioner must
“show that some objective factor external to the defense impeded” his
efforts to comply with the state procedural rule. Murray, 477 U.S. at 488.
For cause to exist, the external impediment must have prevented the
petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467,
497 (1991). With respect to the prejudice prong, the petitioner bears “the
burden of showing not merely that the errors [complained of] constituted a
possibility of prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire [proceeding] with errors of constitutional
dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing
United States v. Frady, 456 U.S. 152, 170 (1982).
In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled
that ineffective assistance of post-conviction counsel may serve as cause,
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to overcome the procedural default of a claim of ineffective assistance of
trial counsel. In Martinez, the Supreme Court noted that it had previously
held, in Coleman, that “an attorney’s negligence in a postconviction
proceeding does not establish cause” to excuse a procedural default.
Martinez, 566 U.S. at 15. The Martinez Court, however, “qualif[ied]
Coleman by recognizing a narrow exception: inadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.”
Id. at 9. The Court described “initial-review collateral proceedings” as
“collateral proceedings which provide the first occasion to raise a claim of
ineffective assistance at trial.” Id. at 8.
Beyond the question of the adequacy of NRS §§ 34.726, 34.800,
and 34.810, the Court will not, in this order, address the remainder of the
issues raised by the parties concerning the alleged procedural default of
Moore’s claims. The question of prejudice, in the cause and prejudice
analysis regarding any alleged procedural defaults in this case, is
intertwined with the question of the merits of the particular claims, such
that those issues will be better addressed in conjunction with the merits,
after Respondents file an answer and Moore a reply. Furthermore, it
appears that, following the Court’s ruling in this order regarding the
question of the exhaustion of Moore’s claims, further briefing of the
procedural default issues in the parties’ answer, reply, and response to
reply, will be beneficial. The Court will, therefore, decline to address the
procedural default issues raised by this motion—other than the question of
the adequacy of NRS §§ 34.726, 34.800, and 34.810. The Court will deny
Respondents’ motion to dismiss, to the extent it is made on procedural
default grounds, without prejudice to Respondents asserting their
procedural default defense in their answer.
The parties’ further briefing regarding the alleged procedural default
of Moore’s claims—in Respondents’ answer, Moore’s reply, and
Respondents’ response to the reply—should, as to each claim allegedly
procedurally defaulted, explain if, when, and where that claim, or a similar
or related claim, was asserted in state court, and explain whether the
claim was ruled procedurally barred in state court, so as to result in the
procedural default of the claim in this action. This analysis should be set
forth—in a clear, understandable manner—for each separate claim
allegedly procedurally defaulted. The parties’ further briefing must, of
course, also address the merits of each of Moore’s remaining claims.
Order entered February 26, 2021 (ECF No. 139), pp. 17–22.
In his motion for reconsideration, Moore first argues that the Court overlooked his

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arguments that Nev. Rev. Stat. §§ 34.726 and 34.800 are not adequate to support

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application of the procedural default doctrine. Motion for Reconsideration (ECF No.

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140), pp. 2–3. Moore points to the following language in the order:

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Moore does not place the adequacy of those rules at issue. Accordingly,
this court concludes that Nev. Rev. Stat. §§ 34.726 and 34.800 are
adequate to support application of the procedural default doctrine in this
case.
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Order entered February 26, 2021 (ECF No. 139), p. 21. Moore argues that this passage

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indicates that the Court did not consider his argument that Nev. Rev. Stat. §§ 34.726

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and 34.800 are inadequate. This is a misreading of the order. The Court recognized

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Moore’s argument that Sections 34.726 and 34.800 are inadequate. However, applying

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the burden-shifting analysis prescribed by the court of appeals in Bennett, and phrasing

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its ruling in the terms used in Bennett, this Court ruled that Moore did not meet his

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burden of proof—he did not “place the adequacy of those rules at issue.” Order entered

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February 26, 2021 (ECF No. 139), p. 21. In short, the Court did not overlook Moore’s

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argument.

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Moore also contends in his motion for reconsideration that the February 26,

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2021, order “is unclear as to whether it considered Moore’s argument that the Nevada

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Supreme Court did not clearly and expressly apply Nev. Rev. Stat. §§ 34.726 & 34.800

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to his claims or whether the Court deems this argument more appropriate for

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consideration after additional briefing.” Motion for Reconsideration (ECF No. 140), pp.

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3–5. The February 26, 2021 order makes clear that, with respect to Respondents’

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procedural default defense, the Court ruled only on the issue of the adequacy of Nev.

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Rev. Stat. §§ 34.726, 34.800 and 34.810. See Order entered February 26, 2021 (ECF

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No. 139), p. 22, lines 3–5 (“Beyond the question of the adequacy of NRS §§ 34.726,

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34.800, and 34.810, the Court will not, in this order, address the remainder of the issues

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raised by the parties concerning the alleged procedural default of Moore’s claims.”), and

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lines 12–14 (“The Court will, therefore, decline to address the procedural default issues

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raised by this motion—other than the question of the adequacy of NRS §§ 34.726,

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34.800, and 34.810.”). The Court did not rule on the question whether the Nevada

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Supreme Court clearly and expressly applied Sections 34.726 and 34.800 to his claims;

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the Court will rule on that issue in conjunction with the merits of Moore’s claims, after

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Respondents file an answer and Moore files a reply.

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IT IS THEREFORE ORDERED that Petitioner’s Motion for Reconsideration (ECF
No. 140) is DENIED.
IT IS FURTHER ORDERED that Respondents shall, within 120 days from the

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date of this order, file an answer, responding to the remaining claims in Petitioner’s

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second amended habeas petition. The time for Petitioner to file a reply to Respondents’

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answer, as set forth in the February 5, 2019, scheduling order (ECF No. 51), will be

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extended to 120 days. In all other respects, the schedule for further proceedings set

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forth in the February 5, 2019, scheduling order (ECF No. 51), will remain in effect.

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April ___ day
DATED THIS 12, 2021.of ______________________, 2021.

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JAMES C. MAHAN,
UNITED STATES DISTRICT JUDGE

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