Scruggs v. Neven et al

Filing 23

ORDER Granting 6 MOTION to Dismiss. The 2 Petition is Dismissed with prejudice. The 22 MOTION to Strike Petitioner's Sur-Reply is Granted. The Clerk shall strike 21 Sur-Reply from the record. The Petitioner is DENIED A CERTIFICATE OF APPEALABILITY. The Clerk of Court shall enter judgment accordingly. Signed by Chief Judge Gloria M. Navarro on 9/30/15. (Copies have been distributed pursuant to the NEF - ASB)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GLEN SCRUGGS,

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Petitioner,

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vs.

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Case No. 2:14-cv-00625-GMN-CWH

DWIGHT NEVEN, et al.,

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ORDER

Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254

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by a Nevada state prisoner. Before the Court is respondents’ motion to dismiss the petition. (ECF

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No. 6).

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I. PROCEDURAL HISTORY

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On March 1, 2011, in the Eighth Judicial District for the State of Nevada, petitioner was

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convicted, pursuant to a guilty plea, of one count of robbery. (Exhibit 35).1 Petitioner was

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sentenced under Nevada’s large habitual criminal statute to life in prison with parole eligibility after

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serving ten years in prison. (Id.).2 Petitioner filed a timely notice of appeal. (Exhibit 38). By order

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filed April 11, 2012, the Nevada Supreme Court affirmed petitioner’ conviction. (Exhibit 53).

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Remittitur issued on May 7, 2012. (Exhibit 54).

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On January 30, 2013, petitioner filed a post-conviction petition in the state district court.

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(Exhibit 60). The state district court denied the petition on May 15, 2013. (Exhibit 68). Petitioner

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appealed. (Exhibit 73). On February 12, 2014, the Nevada Supreme Court affirmed the denial of

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the post-conviction habeas petition. (Exhibit 80). Remittitur issued on March 11, 2014. (Exhibit

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81).

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The exhibits referenced in this order are found in the Court’s record at ECF Nos. 7-10.

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Petitioner was convicted of seven prior felonies, including attempted murder. (Exhibit 33, at pp.

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4-5).

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Petitioner dispatched his federal habeas petition to this Court on April 15, 2014. (ECF No.

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2). Respondents have filed a motion to dismiss the petition. (ECF No. 6). Petitioner filed a

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response in opposition to respondents’ motion to dismiss. (ECF No. 18). Respondents filed a reply.

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(ECF No. 19). Petitioner then filed a document entitled “answer to reply to response to motion to

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dismiss,” which the Court construes as a sur-reply. (ECF No. 21). Respondents have filed a motion

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to strike petitioner’s sur-reply. (ECF No. 22).

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II. DISCUSSION

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A. Motion to Strike Petitioner’s Sur-Reply

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Respondents seek to strike petitioner’s sur-reply, which was filed in response to

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respondents’ reply. Rule 7-2 of the Local Rules of Civil Practice authorizes the filing of a motion, a

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response, and a reply. Local Rule 7-2 does not authorize a party opposing a motion to unilaterally

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file any further papers responding to the motion after the filing of a reply by the movant. This Court

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has not authorized the filing of a sur-reply in this case beyond that which is allowed by the Local

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Rules of Civil Practice. Respondents’ motion to strike (ECF No. 22) petitioner’s sur-reply (ECF

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No. 21) is granted.

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B. Grounds 1, 2, and 3(a)

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Respondents seek to dismiss Grounds 1, 2, and 3(a) of the petition because they are based on

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false allegations and petitioner is not entitled to relief on such grounds. Summary dismissal is

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appropriate where the allegations in a habeas petition are “patently frivolous or false.” Hendricks v.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Moreover, the Court must dismiss a federal habeas

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petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not

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entitled to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases.

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In Ground 1, petitioner alleges that his Sixth Amendment rights were violated because his

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counsel was ineffective for failing to file a timely direct appeal. (ECF No. 2, at pp. 3-5). In Ground

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2, petitioner alleges that his right to a direct appeal was violated and again alleges that his counsel

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failed to file a timely notice of appeal after petitioner asked him to appeal the judgment of

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conviction. (ECF No. 2, at pp. 7-8). In Ground 3(a), petitioner repeatedly alleges that his counsel

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was ineffective for failing to file a direct appeal after the entry of his judgment of conviction. (ECF
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No. 2, at pp. 10-17). Petitioner’s “points and authorities” regarding Grounds 1, 2, and 3, at pages

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19-31 of the petition, further alleges that his counsel failed to file a timely notice of appeal. These

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allegations are patently false, because it is plain from the state court record that petitioner’s counsel

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filed a timely notice of appeal on March 30, 2011. (Exhibit 38). Petitioner’s counsel filed the

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opening brief on direct appeal in the Nevada Supreme Court on September 6, 2011. (Exhibit 46).

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In fact, petitioner attaches pages 3-9 of the opening brief to his federal habeas petition, but omits

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page 1 of the opening brief, which states: “Appellant filed his timely Notice of Appeal on March

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30, 2011.” (Compare ECF No. 2, at pp. 36-43 with Exhibit 46). Petitioner’s allegations that his

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counsel failed to file a timely notice of appeal are patently false and it is plain that petitioner is not

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entitled to relief on these grounds. Accordingly, Grounds 1, 2, and 3(a) of the petition are dismissed

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with prejudice. See Hendricks v. Vasquez, 908 F.2d at 491.

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C. Ground 3(b)

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In Ground 3(b), petitioner makes allegations concerning the advice of counsel which were

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not developed in state court. (ECF No. 2, at pp. 12-13). Petitioner did not request an evidentiary

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hearing to develop the facts in state court. (Exhibit 60, at p. 9(f)). Instead, he only requested an

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evidentiary hearing for the express purpose of requiring counsel to explain why he “failed to file a

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timely notice of appeal.” (Id.). As discussed supra, counsel did file a timely notice of appeal.

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(Exhibit 38). Because petitioner failed to request an evidentiary hearing to prove his factual

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allegations concerning the advice of counsel, no hearing was held in the state district court. Thus,

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petitioner’s allegations in Ground 3(b) have no basis in fact and are not part of the state court record

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considered by the Nevada Supreme Court in affirming the district court’s decision to deny the claim

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made in Ground 3(b).

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“In Pinholster, the Supreme Court held that § 2254(d)(1) ‘requires an examination of the

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state-court decision at the time it was made and on the same record.’” Stokley v. Ryan, 659 F.3d

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802, 807-08 (9th Cir. 2011) (quoting Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011)). The record

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which formed the basis for the Nevada Supreme Court’s decision did not include the factual

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allegations made in Ground 3(b) of the petition, because petitioner failed to develop such facts

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during an evidentiary hearing or assert them in his appellate brief. Because petitioner relies on those
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factual allegations to support his claim, Ground 3(b) must be dismissed because it lacks any basis in

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fact and petitioner is not entitled to an evidentiary hearing in federal court under the exceptions

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provided for in 28 U.S.C. § 2254(e)(2)(A). Accordingly, Ground 3(b) is dismissed with prejudice.

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D. Grounds 4 and 5

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Respondents seek to dismiss Grounds 4 and 5 of the petition on the basis that they do not

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raise cognizable claims under the United States Constitution. In Ground 4, petitioner alleges that

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the state district court abused its discretion in denying his motion to withdraw his guilty plea. (ECF

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No. 2, at p. 32). Presentence motions to withdraw a guilty plea are governed by state law, see NRS

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176.165, and are left to the discretion of the state district court. See Molina v. State, 120 Nev. 185,

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191, 87 P.3d 533, 537 (2004). Petitioner does not cite any provision of the United States

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Constitution or other federal law in support of his argument. (ECF No. 2, at p. 32). In Ground 5,

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petitioner alleges that the state district court abused its discretion in allowing the State to argue that

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he should be sentenced under the large habitual criminal statute. (ECF No. 2, at p. 34). Petitioner

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does not cite any provision of the United States Constitution or other federal law in support of his

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argument. (Id.). Because petitioner’s claims in Grounds 4 and 5 are based in state law and not the

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United States Constitution, they are not cognizable claims for federal habeas relief. See Pulley v.

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Harris, 465 U.S. 37, 41 (1984).

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Additionally, to the extent that Grounds 4 and 5 could be construed as alleging federal

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claims, those claims are unexhausted because they were not federalized in the Nevada state courts.

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A petitioner must alert the state courts to the fact that he is asserting a federal claim in order to fairly

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present the legal basis of the claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). In the Ninth

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Circuit, a petitioner must make the federal basis of the claim explicit by either referencing specific

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provisions of the federal constitution or statutes, or citing to federal case law. Castillo v.

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McFadden, 399 F.3d 993, 999; Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), as modified by

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247 F.3d 904 (9th Cir. 2001). “In order to alert the state court, a petitioner must make reference to

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provisions of the federal Constitution or must cite either federal or state case law that engages in a

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federal constitutional analysis.” Fields v. Waddington, 401 F.3d 1018, 1021-22 (9th Cir. 2005).

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Mere similarity of claims between a state law claim and a federal law claim is insufficient for
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exhaustion purposes. See Henry, 513 U.S. at 366; see also Johnson v. Zenon, 88 F.3d 828, 830 (9th

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Cir. 1996). In the instant case, petitioner did not alert the state courts to the fact that he was

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asserting a federal claim, therefore, he did not fairly present any federal claims to the Nevada state

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courts. See Duncan v. Henry, 513 U.S. at 365-66. The Court must dismiss a petition if there are no

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properly exhausted claims. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); see also Jiminez

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v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).

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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
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). Generally, a petitioner must

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make “a substantial showing of the denial of a constitutional right” to warrant a certificate of

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appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The

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

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

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this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable

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among jurists of reason; that a court could resolve the issues differently; or that the questions are

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adequate to deserve encouragement to proceed further. Id. In this case, no reasonable jurist would

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find this Court’s dismissal of the petition debatable or wrong. The Court therefore denies petitioner

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a certificate of appealability.

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IV. CONCLUSION

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IT IS THEREFORE ORDERED that respondents’ motion to strike (ECF No. 22)

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petitioner’ sur-reply is GRANTED. The Clerk of Court SHALL STRIKE petitioner’s sur-reply

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(ECF No. 21) from the Court’s record.

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IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 6) is
GRANTED.
IT IS FURTHER ORDERED that the petition (ECF No. 2) is DISMISSED WITH
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PREJUDICE in its entirety.
IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF
APPEALABILITY.
IT IS FURTHER ORDERED that the Clerk of Court SHALL ENTER JUDGMENT
ACCORDINGLY.
DATED this 30th day of September, 2015.

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Gloria M. Navarro, Chief Judge
United States District Court

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