Willing v. Williams et al.
Filing
98
ORDER Granting in Part 90 Motion to Dismiss 48 Second Amended Petition for Writ of Habeas Corpus. Respondents shall have sixty (60) days from the date this order is entered within which to file an answer to the remaining grounds in the Seco nd Amended Petition. Petitioner shall have forty-five (45) days following service of Respondents' answer in which to file a reply. Signed by Judge Richard F. Boulware, II on 5/12/2020. (Copies have been distributed pursuant to the NEF - DRS)
Case 2:14-cv-01194-RFB-BNW Document 98 Filed 05/13/20 Page 1 of 5
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
***
Case No. 2:14-cv-01194-RFB-BNW
NICHOLAS JAMES WILLING,
9
10
Petitioner, ORDER
11
v.
12
BRIAN E. WILLIAMS, SR., et al.,
13
Respondents.
14
15
Before the Court is Respondents’ Motion to Dismiss certain grounds in Nicholas James
16
Willing’s 28 U.S.C. § 2254 Habeas Corpus Petition as untimely or procedurally barred. ECF No.
17
90.
18
I.
19
In February 2012, following a three-day jury trial, Willing was convicted of: burglary with
20
use of a deadly weapon (count 1); robbery with use of a deadly weapon (count 2); first degree
21
kidnapping with deadly weapon (count 3); first degree kidnapping with deadly weapon (count 4);
22
first degree kidnapping with deadly weapon (count 5); grand larceny with deadly weapon (count
23
6); grand larceny of firearm(s) with deadly weapon (count 7); battery with intent to commit grand
24
larceny (count 8); assault with deadly weapon (count 9); assault with deadly weapon (count 10);
25
assault with deadly weapon (count 11); and conspiracy to commit robbery (count 12) (Ex. 20 at 2-
26
3, ECF No. 51-1). 1
Background & Procedural History
27
28
1
Exhibits referenced in this order are exhibits to Petitioner’s Second Amended Petition, ECF No. 48, and
are found at ECF Nos. 49-53.
1
Case 2:14-cv-01194-RFB-BNW Document 98 Filed 05/13/20 Page 2 of 5
1
The state district court sentenced Willing as follows:
2
Count 1: 48 to 120 months, with a consecutive 48 to 120 months for the deadly weapon
3
enhancement; count 2: 72 to 180 months, with a consecutive 72 to 180 months for the deadly
4
weapon enhancement; count 3: 60 to 150 months, with a consecutive 60 to 150 months for the
5
deadly weapon enhancement; count 4: 60 to 150 months, with a consecutive 60 to 150 months for
6
the deadly weapon enhancement; count 5: 60 to 150 months, with a consecutive 60 to 150 months
7
for the deadly weapon enhancement; count 6: 48 to 120 months, with a consecutive 48 to 120
8
months for the deadly weapon enhancement; count 7: 48 to 120 months, with a consecutive 48 to
9
120 months for the deadly weapon enhancement; count 8: 48 to 120 months; count 9: 12 to 30
10
months; count 10: 12 to 30 months; count 11: 12 to 30 months; count 12: 28 to 72 months. ECF
11
No. 51-6 at 4-7.
12
The court ordered that counts 1, 2, 6, 7, 9, 10, and 11 would run concurrently, counts 8,
13
and 12 would run consecutively to each other and consecutively to counts 1, 2, 6, 7, 9, 10, and 11,
14
and counts 3, 4, and 5 would run consecutively to each other and concurrently with all other
15
counts. Ex. 24 at 51-60, ECF No. 51-5. The sentences amount to about 30 to 75 years. ECF No.
16
48 at 4. The judgment of conviction was filed on June 26, 2012. Ex. 25, ECF No. 51-6 at 7.
17
The Nevada Supreme Court affirmed Willing’s convictions and affirmed the denial of his
18
motion for a new trial. Ex. 38, ECF No. 51-9; Ex. 44, ECF No. 51-25. The Nevada Supreme Court
19
also affirmed the denial of Willing’s state postconviction habeas petition. Ex. 64 at 3, 53-7.
20
Willing filed his original federal habeas petition in July 2014. ECF No. 1. Ultimately, after
21
filing a Second Amended Petition (ECF No. 48), this Court granted Willing’s Motion to Stay while
22
he returned to state court. ECF No. 59. The Court then granted his Motion to Lift Stay and
23
reopened this action in February 2019. ECF No. 76. Respondents now move to dismiss certain
24
claims in the Second Amended Petition as time-barred. ECF No. 90.
25
26
II.
Legal Standards & Analysis
a. AEDPA Statute of Limitations
27
The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on April 24,
28
1996 and imposes a one-year statute of limitations on the filing of federal habeas corpus petitions.
2
Case 2:14-cv-01194-RFB-BNW Document 98 Filed 05/13/20 Page 3 of 5
1
28 U.S.C. § 2244(d). The one-year time limitation can run from the date on which a petitioner’s
2
judgment became final by conclusion of direct review, or the expiration of the time for seeking
3
direct review.
4
postconviction relief can toll the period of limitations. 28 U.S.C. § 2244(d)(2).
28 U.S.C. § 2244(d)(1)(A).
Further, a properly filed petition for state
b. Relation Back
5
6
A new claim in an amended petition that is filed after the expiration of the AEDPA one-year
7
limitation period will be timely only if the new claim relates back to a claim in a timely-filed
8
pleading under Rule 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim
9
arises out of “the same conduct, transaction or occurrence” as a claim in the timely pleading.
10
Mayle v. Felix, 545 U.S. 644, 664 (2005).
11
In Mayle v. Felix, the Supreme Court held that habeas claims in an amended petition do not
12
arise out of “the same conduct, transaction or occurrence” as claims in the original petition merely
13
because the claims all challenge the same trial, conviction or sentence. Id. at 655–64. Rather,
14
under the construction of the rule approved in Mayle, Rule 15(c) permits relation back of habeas
15
claims asserted in an amended petition “only when the claims added by amendment arise from the
16
same core facts as the timely filed claims, and not when the new claims depend upon events
17
separate in ‘both time and type’ from the originally raised episodes.” Id. at 657 (citation omitted).
18
In this regard, the reviewing court looks to “the existence of a common core of operative facts
19
uniting the original and newly asserted claims.” Id. at 646. A claim that merely adds “a new legal
20
theory tied to the same operative facts as those initially alleged” will relate back and be timely. Id.
21
at 658 n.5, 659; Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013), abrogated on other
22
grounds by Davila v. Davis, 137 S. Ct. 2058 (2017)).
23
Here, the Nevada Supreme Court affirmed Willing’s convictions on May 14, 2013. ECF No.
24
51-9. Willing then had ninety days to seek a writ of certiorari from the United States Supreme
25
Court. Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009) (conviction final when Supreme
26
Court denies petition for writ of certiorari, or when time to seek writ expires); see also Sup. Ct. R.
27
13(1).
28
3
Case 2:14-cv-01194-RFB-BNW Document 98 Filed 05/13/20 Page 4 of 5
1
However, in the meantime, Willing filed a motion for a new trial on February 6, 2013. Ex. 29,
2
ECF No. 51-10. The Nevada Supreme Court affirmed the state district court’s denial of the motion,
3
and remittitur issued on May 6, 2014. Ex. 43, ECF No. 51-24; Ex. 44, ECF No. 51-25. Thus, the
4
AEDPA statute of limitations began to run on May 7, 2014. 28 U.S.C. § 2244(d)(2).
5
Willing, through counsel, timely filed his original federal petition on July 21, 2014. ECF No.
6
1. He filed his pro se First Amended Petition on June 29, 2015, 418 days after the date of finality
7
(the day after remittitur issued on Willing’s motion for new trial) and approximately two months
8
after the AEDPA statute of limitations expired. ECF No. 33. He then filed a counseled Second
9
Amended Petition on October 25, 2016. ECF No. 48.
10
11
Therefore, the claims in Willing’s Second Amended Petition must relate back to his timely
original petition, otherwise they are subject to dismissal. Mayle, 545 U.S. at 657.
12
Respondents argue that grounds 1(C), 2(C), and 3(A) of the Second Amended Petition do not
13
relate back to the timely, original petition. ECF No. 90 at 11-14. They additionally argue that they
14
are procedurally barred. Id. at 14-15.
15
Ground 1(C)
16
Willing asserts that the prosecution suppressed favorable and material evidence regarding
17
Dylan Spellman, one of the State’s two key witnesses against Willing. ECF No. 48 at 22-26.
18
Specifically, he alleges that, contrary to Spellman’s testimony at Willing’s trial, “it seems
19
apparent” that there was an “understanding” that Spellman would not get the benefit of his plea
20
deal with the State unless he testified against Willing. Id. at 25.
21
Ground 2(C)
22
Willing contends that the prosecution failed to inform the defense that it allowed Spellman
23
to plead guilty to two reduced charges in exchange for his continued cooperation and testimony
24
against Willing, which denied Willing his constitutional right to confront his accusers Id. at 31-32.
25
He alleges that he was denied the ability to cross-examine Spellman regarding his general
26
credibility or show his possible bias or ulterior motives in testifying when the State failed to inform
27
the defense that Spellman pled guilty to reduced charges in exchange for his continued cooperation
28
and testimony against Willing. Id.
4
Case 2:14-cv-01194-RFB-BNW Document 98 Filed 05/13/20 Page 5 of 5
1
Ground 3(A)
2
Willing argues that his trial counsel was ineffective for failing to conduct an adequate
3
investigation Id. at 32-34. He alleges that counsel should have “investigated and talked to [Jamie]
4
Sexton’s attorney and Spellman’s attorney [and] learned that Sexton and Spellman were required,
5
as part of their plea agreement, to cooperate and testify against Willing.” Id. at 33.
6
Willing’s original petition focused on a separate jewelry theft case against co-defendant
7
Jamie Sexton that the prosecution allegedly never revealed to the defense. See ECF Nos. 1, 2.
8
Respondents are correct that Willing did not raise the claims in grounds 1(C), 2(C) or 3(A) or any
9
claims that would even arguably arise from a common core of operative facts as any claims in the
10
original petition. These new claims depend on events separate in “‘both time and type’ from the
11
originally raised episodes.” Mayle, 545 U.S. at 657. The Court concludes that these grounds do
12
not relate back to a timely filed petition. Accordingly, grounds 1(C), 2(C) and 3(A) are dismissed
13
as untimely.
14
III.
15
IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 90) is
16
Conclusion
GRANTED as follows:
17
Grounds 1(C), 2(C) and 3(A) are DISMISSED as untimely.
18
IT IS FURTHER ORDERED that Respondents shall have sixty (60) days from the date
19
this order is entered within which to file an answer to the remaining grounds in the Second
20
Amended Petition.
21
22
23
IT IS FURTHER ORDERED that Petitioner shall have forty-five (45) days following
service of Respondents’ answer in which to file a reply.
DATED: May 12, 2020.
24
25
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?