Carley v. NDOC/FMWCC et al

Filing 77

ORDER denying 65 Motion to Dismiss; ORDER denying 76 Motion to Extend Time; petitioner will have until up to and including one hundred twenty (120) days from entry of this order within which to file a counseled third amended petition and/or seek other appropriate relief (see order for details). Signed by Judge James C. Mahan on 11/20/2020. (Copies have been distributed pursuant to the NEF - JM)

Case 2:14-cv-02097-JCM-BNW Document 77 Filed 11/20/20 Page 1 of 7

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ELIZABETH K. CARLEY, a.k.a.
MELISSA ARIAS,

ORDER
Petitioner,

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v.

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JO GENTRY, et al.,
Respondents.

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Case No. 2:14-cv-02097-JCM-BNW

I.

Introduction
Petitioner Elizabeth Carley has filed an unopposed motion for extension of time in which

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to file opposition to the State's motion to dismiss (fourth request) (ECF No. 76). Carley has

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stated the recent procedural history, which the court repeats here. On February 19, 2020,

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respondents filed the current motion to dismiss (ECF No. 65). At the time, Carley was pro se.

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Counsel moved to be appointed, and the court granted the request on April 10, 2020. ECF No.

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70. The court then granted Carley extensions to file an opposition to the motion dismiss, which

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was due on October 21, 2020. Rather than grant Carley's motion, the court will give Carley leave

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to file a third amended petition, and the court will deny the motion to dismiss without prejudice.

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II.

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Procedural History
Carley was accused of trying to have a casino cashier change the personal identification

number on a player's card that was not her own, to cash out the account; she used a false
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Case 2:14-cv-02097-JCM-BNW Document 77 Filed 11/20/20 Page 2 of 7

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identification card in that person's name to try to convince the cashier. The state justice court

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bound Carley over for trial in the state district court on three counts: (1) burglary, a category B

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felony; (2) possessing persona identifying information, a category E felony, and an attempt to

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obtain money, $650 or more, under false pretenses, a category C felony. Ex 1 (ECF No. 11-1).

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Carley and the prosecution then came to a plea agreement. Carley agreed to plead guilty to the

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attempt to obtain money under false pretenses. Both parties stipulated to a suspended prison

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sentence with a minimum term of 18 months and a maximum term of 48 months. The

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prosecution retained the right to argue the terms and conditions of probation. If Carley was

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honorably discharged from probation, then she could withdraw her plea and then plead guilty to

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conspiracy to commit a crime, a gross misdemeanor. Ex. 3 (ECF No. 11-3). Carley's probation

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was revoked, and she served the prison sentence.

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The second amended petition (ECF No. 13) is the operative petition. The court found that

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Carley had not exhausted her state-court remedies for grounds 2, 3, and 4, and all claims in

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ground 1 except the claim that counsel deprived her of a direct appeal. ECF No. 24. The court

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dismissed the action, but, upon reconsideration, stayed the action while Carley exhausted her

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state-court remedies. ECF No. 48.

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Carley filed a second post-conviction habeas corpus petition in the state district court. Ex.

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46 (ECF No. 63-25). This contained claims only of ineffective assistance of counsel. On

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February 15, 2018, the state district court orally determined that the second state petition was

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untimely, successive, and barred by laches; the written order was entered on March 26, 2018. Ex.

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55 (ECF No. 64-9). On February 16, 2018, Carley filed a supplemental state habeas corpus

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petition. Respondents included the motion for leave to file the supplemental petition in their

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exhibits, Ex. 51 (ECF No. 64-5), but they did not include the supplemental state petition itself.1

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The Nevada Supreme Court, for the time being, has made appellate appendices and records

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available on-line, and this court has found the supplemental state petition. Carley v. State, No.

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75982, Record on Appeal Volumes 2 and 3, filed July 2, 2018.2 The state district court

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Based upon their arguments in the motion to dismiss, respondents apparently and incorrectly believe that the motion
for leave to file a supplemental petition is the supplemental petition itself. See ECF No. 65 at 9.
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http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=46220 (report generated November 11, 2020). The

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designated this as a third state habeas corpus petition, and determined that it was untimely under

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Nev. Rev. Stat. § 34.726, successive under Nev. Rev. Stat. § 34.810, and barred by laches under

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Nev. Rev. Stat. § 34.800. Ex. 61 (ECF No. 64-15). Carley appealed the denials of both petitions.

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The Nevada Supreme Court consolidated the appeals and affirmed both denials. Ex. 69 (ECF No.

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64-23).

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III.

Discussion

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Respondents argue that Carley has procedurally defaulted all grounds in the second

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amended petition, except for the claim that trial counsel deprived Carley of a direct appeal.3 ECF

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No. 65 at 10-14. Ground 1 contains multiple claims of ineffective assistance of two different trial

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attorneys, who represented Carley at different times. Carley can argue that the absence of counsel

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in the initial state post-conviction proceedings is good cause to excuse the procedural default of

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that ground. See Martinez v. Ryan, 566 U.S. 1, 14 (2012). Martinez requires the procedurally

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defaulted claim of ineffective assistance of trial counsel be substantial. Id.

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This is where the case runs into problems. Part of ground 1 is a claim that trial counsel

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provided ineffective assistance in advising Carley to plead guilty to one count of felony attempt to

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obtain money under false pretenses. At the time, the threshold for the offense to be a felony was

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a value of $650. Nev. Rev. Stat. § 205.380(1)(a) (2011). Carley argues that the casino player's

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card at issue had a value of only $72.16, which would have made the offense a misdemeanor.

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ECF No. 13 at 5; Nev. Rev. Stat. § 205.380(1)(b) (2011). Additionally Carley argues that the

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false identification card that she was accused of using had a photograph of a person that looked

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nothing like her. Carley alleges in the second amended petition that this information was in the

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criminal case's discovery, but that she did not receive it until after she was convicted. She did not

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include photocopies of the player's card of the identification card with her second amended

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petition. Recently appointed counsel for Carley still is trying to obtain these cards or copies of

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them. Counsel believes that the Nevada Supreme Court's records contain the discovery materials,

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supplemental state petition straddles two volumes of the record on appeal. Bates pages 436-80 are in volume 2, and
Bates pages 481-529 are in volume 3.
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Respondents also argue that Carley has failed to exhaust her state-court remedies and that a free-standing claim of
actual innocence is not addressable in federal habeas corpus, but those arguments are not relevant to this order.

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but that they are not publicly accessible in the on-line docket. Counsel is paying to obtain those

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materials. ECF No. 76 at 2-3. As noted above, the Nevada Supreme Court has made the records

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on appeal and the appellate appendices publicly available. The court has reviewed all of them in

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all of Carley's appeals. If the Nevada Supreme Court has these discovery materials, then either

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they are sealed and not listed in the index of the record on appeal, or they are not on the dockets

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at all. If the Nevada Supreme Court's records do not contain the discovery materials, then counsel

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for Carley anticipates filing a motion requesting leave to subpoena state agencies for these

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documents. ECF No. 76 at 3.

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Assuming that counsel for Carley can obtain these cards, and that the information about

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those cards matches Carley's allegations, another problem arises. The court does not possess the

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full record of the plea agreement. Although respondents filed the written guilty plea agreement,

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they did not file the transcript of the plea hearing. Apparently, the transcript did not exist until

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recently. The court has reviewed the records on appeal in all of Carley's appeals to the Nevada

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Supreme Court, and the court has been unable to find the transcript. The state district court's

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docket shows that the transcript of the initial arraignment, on May 7, 2012, was filed on June 25,

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2020. State v. Carley, Case No. C-12-281213-1.4 If the court needs to determine whether the

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ineffective-assistance claim regarding Carley's plea is substantial under Martinez v. Ryan, then

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the court needs that transcript.

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The court has discussed the case at length, and examined on its own the newly available

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Nevada Supreme Court records, on a motion for extension of time because the underlying motion

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to dismiss has been pending for around 9 months now. If Carley cannot obtain the information

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about the player's card and the identification card from the Nevada Supreme Court, then Carley

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will need to seek the documents through other means. Discovery will take a few more months.

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Then briefing on the motion to dismiss would need to resume, including the transcript from the

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arraignment. However, briefing might not resume, because Carley might seek leave to file a

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counseled third amended petition. ECF No. 76 at 3. Granting the instant motion for an extension

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https://www.clarkcountycourts.us/Anonymous/CaseDetail.aspx?CaseID=9271814 (report generated November 11,
2020).

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of time is no guarantee that Carley will file a response to the motion to dismiss by the proposed

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deadline.

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The two possibilities that counsel mentions besides a response to a motion to dismiss—a

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motion for leave to conduct discovery and a motion for leave to file a counseled third amended

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petition—suggest that the cart might have been put in front of the horse in this case. Instead of

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asking for additional time to respond to the motion to dismiss, only to find that a response

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required investigation into the facts of the case,5 counsel for Carley might have asked for leave to

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amend at the outset of representation, and investigation would have helped determine which

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claims were viable.

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The court will take a shortcut to what seems to be the most likely outcome. The court will

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deny the motion for extension of time. Instead, the court will issue a scheduling order that gives

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Carley leave to file a counseled third amended petition, and the court will deny respondents'

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current motion to dismiss without prejudice to filing a new motion to dismiss in response to the

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counseled third amended petition.

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Carley also argues for an extension based upon work that needed to be done, or upcoming

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deadlines, in other cases. The court will not address these arguments, because the court will give

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Carley leave to file a third amended petition.

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IT THEREFORE IS ORDERED that petitioner's unopposed motion for extension of time

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in which to file opposition to the State's motion to dismiss (fourth request) (ECF No. 76) is

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DENIED.

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IT FURTHER IS ORDERED that petitioner will have until up to and including one

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hundred twenty (120) days from entry of this order within which to file a counseled third

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amended petition and/or seek other appropriate relief. Neither the foregoing deadline nor any

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extension thereof signifies or will signify any implied finding as to the expiration of the federal

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limitation period and/or of a basis for tolling during the time period established. Petitioner

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always remains responsible for calculating the running of the federal limitation period and timely

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In fairness to current counsel, Carley herself alleged that she had received the discovery materials from prior
counsel. ECF No. 13 at 5.

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asserting claims, without regard to any deadlines established or extensions granted herein. That

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is, by setting a deadline to amend the petition and/or by granting any extension thereof, the court

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makes no finding or representation that the petition, any amendments thereto, and/or any claims

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contained therein are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 1225,

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1235 (9th Cir. 2013).

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IT FURTHER IS ORDERED that respondents must file a response to the third amended

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petition, including potentially by motion to dismiss, within 60 days of service of a second

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amended petition and that petitioner may file a reply within 30 days of service of an answer. The

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response and reply time to any motion filed by either party, including a motion filed in lieu of a

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pleading, will be governed instead by Local Rule LR 7-2(b).
IT FURTHER IS ORDERED that any procedural defenses raised by respondents to the

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counseled second amended petition must be raised together in a single consolidated motion to

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dismiss. In other words, the court does not wish to address any procedural defenses raised herein

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either in serial fashion in multiple successive motions to dismiss or embedded in the answer.

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Procedural defenses omitted from such motion to dismiss will be subject to potential waiver.

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Respondents must not file a response in this case that consolidates their procedural defenses, if

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any, with their response on the merits, except pursuant to 28 U.S.C. § 2254(b)(2) as to any

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unexhausted claims clearly lacking merit. If respondents do seek dismissal of unexhausted claims

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under § 2254(b)(2): (a) they must do so within the single motion to dismiss not in the answer; and

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(b) they must specifically direct their argument to the standard for dismissal under § 2254(b)(2)

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set forth in Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). In short, no procedural

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defenses, including exhaustion, must be included with the merits in an answer. All procedural

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defenses, including exhaustion, instead must be raised by motion to dismiss.

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IT FURTHER IS ORDERED that, in any answer filed on the merits, respondents must

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specifically cite to and address the applicable state court written decision and state court record

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materials, if any, regarding each claim within the response as to that claim.

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Case 2:14-cv-02097-JCM-BNW Document 77 Filed 11/20/20 Page 7 of 7

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IT FURTHER IS ORDERED that, notwithstanding Local Rule LR IC 2-2(g), paper copies

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of any electronically filed exhibits need not be provided to chambers or to the staff attorney,

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unless later directed by the court.

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IT FURTHER IS ORDERED that respondents' motion to dismiss (ECF No. 65) is
DENIED without prejudice to filing a motion to dismiss the third amended petition.
DATED: November 20, 2020.

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______________________________
JAMES C. MAHAN
United States District Judge

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