Barnes v. Nevens et al

Filing 34

ORDER that 25 Respondents' Motion to Dismiss is DENIED. Signed by Judge Richard F. Boulware, II on 2/5/2018. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DEMAR RAHYMES BARNES,

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Case No. 2:14-cv-01946-RFB-PAL

Petitioner,

ORDER

v.
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D.W. NEVENS, et al.,
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Respondents.
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This habeas matter under 28 U.S.C. § 2254 is before the court on Respondents’

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motion to dismiss Petitioner Demar Rahymes Barnes (“Barnes”)’ First Amended Petition

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(ECF No. 21).

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I.

PROCEDURAL HISTORY AND BACKGROUND

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On May 7, 2012, Barnes was charged with three counts of Child Abuse & Neglect

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with Substantial Bodily Harm. (ECF No. 22-3). On May 31, 2012, the District Attorney filed

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an Amended Complaint charging Barnes with one count of Child Abuse with Substantial

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Bodily Harm, one count of Child Neglect Resulting in Substantial Bodily Harm, and one

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count of Child Abuse with Substantial Bodily Harm. (ECF No. 22-4). A Clark County Public

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Defender was appointed to represent Barnes. (ECF No. 22-1 at 1). Barnes waived his

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preliminary hearing and informed the court that he would enter a guilty plea to one count

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of Child Abuse Resulting in Substantial Bodily Harm, carrying a term of two to twenty

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years. (ECF No. 22-5). Pursuant to the plea agreement, the District Attorney filed an

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Information charging Barnes with one count of Child Abuse with Substantial Bodily Harm
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on June 25, 2012. (ECF No. 8-1). Barnes entered into the guilty plea agreement on June

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28, 2012. (ECF No. 8-2). On September 25, 2012, the district court sentenced Barnes to

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a maximum prison term of 240 months with a minimum parole eligibility requirement of

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96 months. (ECF No. 22-7 at 8). The court credited Barnes with 51 days for time served

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and assessed $25 administrative and $150 DNA fees. The court then memorialized

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Barnes’ sentence in the October 2, 2012 Judgment of Conviction. (ECF No. 8-4). This is

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the judgment Barnes challenges in this Amended Petition.

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Barnes’ attorney filed a Notice of Appeal on October 10, 2012. (ECF No. 22-9).

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Barnes’s attorney also filed a Fast Track Statement on February 7, 2013. (ECF No. 8-5).

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The Nevada Supreme Court affirmed Barnes’ conviction on June 13, 2013. (ECF No. 22-

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12). The court issued its remittitur on July 11, 2013. (ECF No. 22-13). The state district

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court granted Barnes’ motion for the withdrawal of his attorney on August 6, 2013, but his

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motion for appointment of counsel was denied. (ECF No. 22-1 at 6). Barnes submitted a

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second motion for appointment of counsel on September 13, 2013. He subsequently filed

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a proper person Petition for Writ of Habeas Corpus (Post-Conviction) on September 26,

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2013, asserting ineffective assistance of counsel claims under the Sixth and Fourteenth

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Amendments. (ECF No. 8-6). The state court conducted a hearing on the post-conviction

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petition and ordered the petition denied. (ECF No. 22-8 at 9). Barnes was not present at

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the hearing. Barnes filed a proper person Notice of Appeal on January 9, 2014. (ECF No.

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22-14). Pursuant to a request from the Nevada Supreme Court, the district court filed a

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Notice of Entry of Findings of Fact, Conclusions of Law and Order on January 21, 2014.

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(ECF No. 22-16). The Nevada Supreme Court, without briefing, affirmed the conviction

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and denied all of Barnes’ claims on June 11, 2014. (ECF No. 22-18). The court issued its

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remittitur on July 8, 2014. (ECF No. 22-19).

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Barnes mailed his pro se Petition for Section 2254 Habeas Corpus on November

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17, 2014. (ECF No. 1-1). The Petition was filed on November 21, 2014. (ECF No. 1). He

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filed a motion for appointment of counsel on January 6, 2015. (ECF No. 2). Pursuant to

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this Court’s Order (ECF No. 3), he paid the required filing fee. (ECF No. 4). On June 29,
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2015, the Court denied Barnes’ motion for appointment of counsel, and gave

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Respondents 45 days to answer or respond to the Petition. (ECF No. 5). The clerk of

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court filed Barnes’ petition on the same day. (ECF No. 6). Respondents filed a Motion to

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Dismiss the Petition and Exhibits filed in support. (ECF Nos. 7-8). Barned filed a proper

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person Response to the Motion to Dismiss / Motion to Stay. (ECF No. 10). On March 31,

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2016, the Court issued an Order reconsidering its prior order and granting Barnes’ request

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for counsel, and appointed the Federal Public Defender for the District of Nevada as

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counsel for Barnes. (ECF No. 11). Counsel filed a Notice of Representation on April 15,

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2016. (ECF No. 12). The First Amended Petition was filed on September 29, 2016. (ECF

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No. 21).

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II.

LEGAL STANDARDS
A. Exhaustion

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A federal court will not grant a state prisoner’s petition for habeas relief until the

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prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy,

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455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair

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opportunity to act on each of his claims before he presents those claims in a federal

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habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v.

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Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has

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given the highest available state court the opportunity to consider the claim through direct

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appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916

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(9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).

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A habeas petitioner must “present the state courts with the same claim he urges

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upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal

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constitutional implications of a claim, not just issues of state law, must have been raised

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in the state court to achieve exhaustion. Picard, 404 U.S. at 276. To achieve exhaustion,

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the state court must be “alerted to the fact that the prisoner [is] asserting claims under the

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United States Constitution” and given the opportunity to correct alleged violations of the
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prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v.

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Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b)

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“provides a simple and clear instruction to potential litigants: before you bring any claims

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to federal court, be sure that you first have taken each one to state court.” Jiminez v.

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Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520

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(1982)). “[G]eneral appeals to broad constitutional principles, such as due process, equal

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protection, and the right to a fair trial, are insufficient to establish exhaustion.” Hiivala, 195

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F.3d at 1106. However, citation to state case law that applies federal constitutional

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principles will suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en

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banc).

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A claim is not exhausted unless the petitioner has presented to the state court the

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same operative facts and legal theory upon which his federal habeas claim is based.

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Bland v. Cal. Dep’t of Corr., 20 F.3d 1469, 1473 (9th Cir. 1994).

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requirement is not met when the petitioner presents to the federal court facts or evidence

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which place the claim in a significantly different posture than it was in the state courts, or

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where different facts are presented at the federal level to support the same theory. See

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Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d

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1294, 1295 (9th Cir. 1982).

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The exhaustion

B. Amendment of habeas pleadings

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Federal Rule of Civil Procedure 15 applies to amendment of habeas pleadings.

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Mayle v. Felix, 545 U.S. 644, 649 (2005). "An amendment of a pleading relates back to

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the date of the original pleading when . . . the claim . . . asserted in the amended pleading

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arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth

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in the original pleading." Id. (citing Fed. R. Civ. P. 15(c)(2)) (quotation marks omitted). An

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amended habeas petition does not relate back to the original pleading when it “asserts a

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new ground for relief supported by facts that differ in both time and type” from those

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included in the original petition. Id. at 650.

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III.

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DISCUSSION
A. Claim 1 1

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In the First Amended Complaint, Barnes argues that he did not enter his guilty plea

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knowingly and voluntarily because he is a foreign national who did not understand the

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U.S. legal system, including his right to a jury trial, which therefore violated his Fifth, Sixth,

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and Fourteenth Amendment rights.

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Respondents contend this claim is time barred under the 1-year statute of

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limitations of 28 U.S.C. § 2244(d) and under Mayle. However, the Court finds that this

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claim properly asserts the same type of facts occurring during the same time period as in

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the original Petition. In Barnes’ original Petition, he stated: “Petitioner states that being a

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foreign national and age 21 from Jamaica, he was not educated pertaining to any laws

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regarding intering [sic] into a guilty plea.” (ECF No. 6 at 5). The Court finds that these

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facts are sufficiently similar to the claims now asserted in the First Amended Petition, and

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denies the Motion to Dismiss with regard to Claim 1.
B. Claim 2 2

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Barnes next argues that he did not enter his guilty plea knowingly and voluntarily

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because he possessed an incomplete understanding of the contents and nature of the

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plea agreement, which therefore led to violations of his Fifth, Sixth, and Fourteenth

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Amendment rights.

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Respondents argue that this claim is also time-barred. The Court finds that this

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claim relates back to the original habeas petition. In the original Petition, Barnes stated:

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“[C]ourt appointed counsel Bashor failure [sic] to inform Petitioner that he had a

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constitutional right to a have a jury trial . . . .” (ECF No. 6 at 3.) Additionally: “Petitioner

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states that court appointed counsel Bashor mislead him to accept a guilty plea that would

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allow prison time for an unintentional abuse and child neglect. . . . As court appointed

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Respondents label this claim as “Claim 1a” in their Motion. The Court will follow the numbering sequence
of claims as set forth in the First Amended Petition.
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Respondents label this claim as “Claim 1b” in their Motion.

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Public Defender Bashor never informed him that he would be sentenced to an 8 to 20

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year for an unintentional child abuse . . . .” (ECF No. 6 at 5). The Court finds that Barnes

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alleged facts related to incomplete knowledge about the plea agreement in his original

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Petition, and that the claim asserted in the First Amended Petition relates back to the

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original pleading. Therefore, the Motion to Dismiss is denied with regard to Claim 2.
C. Claim 4 3

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Barnes’ fourth and final claim is that he did not enter his guilty plea knowingly and

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voluntarily because counsel advised him to waive his preliminary hearing and plead guilty

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without conducting an investigation of the case or even acquiring all of the District

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Attorney’s discovery, in violation of his Fifth, Sixth, and Fourteenth Amendment rights.

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Respondents again argue that this claim is time barred. The Court finds that this

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claim relates back to the original Petition. Barnes stated in the original Petition: “In fact

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Petitioner[’]s court appointed Public Defender Ryan Bashor failures [sic] to investigate an

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investigation report performed by Family Juvenile Division . . . . [T]his report was never

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presented as material evidence to show the court and or the Nevada Supreme court that

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it was indeed the natural mother . . . who actually caused the alleged abuse and neglect

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. . . .” (ECF No. 6 at 3). Further: “Petitioner[ ] alleges serious claims of cumulative errors

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performed by his court appointed counsel and Family Division investigator who did not

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inform the court that direct evidence shows conclusive proof that Petitioner did not cause

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the fracture right side clavicle injury to his step-son.” (ECF No. 6 at 7). The Court finds

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this claim in the First Amended Petition is a more detailed elaboration of the same facts

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and occurrences as alleged in the original Petition. Therefore, Respondents’ Motion to

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Dismiss is denied with regard to Claim 4.

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The Court acknowledges that Barnes now brings the above claims under the Fifth

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and Sixth Amendment, which were not raised in the original Petition, although the Sixth

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Amendment was raised in state post-conviction proceedings. However, the Court finds

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Respondents label this claim as “Claim 1d” in their Motion.

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that the allegations remain substantially the same; Petitioner asserts the same ineffective

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assistance of counsel ground for relief with the same underlying factual assertions.

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IV.

CONCLUSION
IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 25)

is DENIED.

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DATED: February 5, 2018
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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