Smith v. Williams et al

Filing 22

ORDER Screening Petition and Directing Response. Respondents must answer or otherwise respond to 21 Third-Amended Petition for Writ of Habeas Corpus by July 21, 2016. Signed by Judge Jennifer A. Dorsey on 6/6/16. (Copies have been distributed pursuant to the NEF - TR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

Robert Fitzgerald Smith,

5

Petitioner

2:15-cv-00465-JAD-PAL
Order Screening Petition and Directing
Response

6

v.

7

Brian E. Williams, et al.,

8

Respondents

9
10

Section 2254 petitioner Robert Fitzgerald Smith brings this action to challenge his Nevada

11

state court conviction and sentence for attempted murder with use of a deadly weapon. I now screen

12

Smith’s third-amended petition, dismiss multiple grounds, and order respondents to respond to the

13

remaining grounds by July 21, 2016.

14

Discussion

15

After Smith omitted most of his grounds for relief from his first-and second-amended habeas

16

petition, I gave him one last chance to file an amended petition complete in itself, containing all of

17

his grounds for relief and the facts supporting them without reference to prior petitions.1 Smith’s

18

third-amended petition contains 26 grounds for relief: 1, 2, 2(B), 2(C), 3, 4, 4(B), 5, 5(B), 5(C),

19

5,(D), 5(E), 6 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19. Construed liberally, ground 18

20

contains 2 grounds for relief, and ground 19 contains 3.

21

A.

22

Grounds to be dismissed
In Ground 2(B), Smith claims that his appellate counsel was ineffective for failing to raise

23

ineffective-assistance-of-trial-counsel claims on direct appeal. In Nevada, claims of ineffective

24

assistance of counsel must be raised in a post-conviction habeas corpus petition and are not

25

cognizable on direct appeal.2 Appellate counsel was therefore not ineffective for failing to raise

26
27

1

ECF No. 20.

28

2

See Gibbons v. State, 634 P.2d 1214, 1216 (Nev. 1981).
Page 1 of 4

1

these claims on direct appeal, so ground 2(B) is dismissed.

2

In ground 2(C) Smith claims that his appellate counsel had a conflict of interest because both

3

his trial and appellate counsel worked for the Clark County Public Defender. Smith does not explain

4

how their employment in the same office caused a conflict of interest. The only possible conflict of

5

interest would be appellate counsel’s failure to challenge the effectiveness of trial counsel, but, as

6

explained above, ineffective-assistance-of-counsel claims cannot be raised on direct appeal.

7

Accordingly, ground 2(C) is also dismissed.

8
9

Ground 5 is a claim that the trial court erred in admitting testimony of a jailhouse informant.
Because this ground is redundant to the better-pleaded ground 12, I dismiss it.3

10

In ground 15, Smith claims that his post-conviction counsel was ineffective for failing to

11

raise an issue about the late disclosure of a rebuttal prosecution witness. Because there is no right to

12

effective assistance of counsel in state post-conviction habeas proceedings,4 ground 15 is also

13

dismissed.

14

Smith next claims that the state district court erred when it determined that he received

15

effective assistance of counsel. “[A] petition alleging errors in the state post-conviction review

16

process is not addressable through habeas corpus proceedings.”5 Accordingly, ground 16 is also

17

dismissed.

18

Ground 18 is styled as a single claim of ineffective assistance of post-conviction counsel.

19

But liberally construed, ground 18 contains two separate claims: (1) ineffective assistance of trial

20

counsel for failing to object to the prosecutor’s comments on Smith’s decision not to testify; and (2)

21

ineffective assistance of post-conviction counsel for failing to raise an ineffective-assistance-of-trial-

22

counsel claim based on trial counsel’s failure to object to those comments. The second portion of

23
3

24

Grounds 5(B), 5(C), 5(D), and 5(E) will proceed.

Coleman v. Thompson, 501 U.S. 722, 752 (1991). Ineffective assistance of counsel in the initial
state post-conviction proceedings may be cause to excuse the procedural default of a claim of
ineffective assistance of trial or appellate counsel. Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012);
Ha Van Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir. 2013). Nonetheless, there is no
constitutional right to effective assistance of counsel in state post-conviction proceedings.
4

25
26
27

Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); see also Gerlaugh v. Stewart, 129 F.3d
1027, 1045 (9th Cir. 1997).

5

28

Page 2 of 4

1

this claim fails because, as explained above, Smith has no constitutional right to effective assistance

2

of post-conviction counsel.6 However, respondents will need to respond to the first half of this claim

3

that Smith’s trial counsel was ineffective for failing to object to the prosecutor’s comments.

4

Ground 19 is also styled as a single ineffective-assistance-of-counsel claim. But liberally

5

construed, ground 19 presents three separate ineffective-assistance-of-counsel claims: (1) ineffective

6

assistance of trial counsel for failing to object to the prosecutor’s comments on Smith’s decision not

7

to testify, (2) ineffective assistance of appellate counsel for failing to raise an ineffective-assistance-

8

of-trial-counsel-claim for failure to object to those comments, and (3) ineffective-assistance-of-post-

9

conviction-counsel for failing to raise an ineffective-assistance-of-appellate counsel in Smith’s state

10

habeas action. The first claim is redundant to ground 18. The second claim fails because

11

ineffective-assistance-of-trial-counsel claims cannot be raised on direct appeal in Nevada.7 Finally,

12

the third claim lacks merit because Smith has no constitutional right to effective assistance of post-

13

conviction counsel.8 I therefore dismiss ground 19 in its entirety.

14

B.

15

All other grounds may proceed
Grounds 5(E), 8, 9, 10, 11, 13, 14, and 17 incorporate arguments by reference to fast-track

16

statements filed on direct appeal and in Smith’s appeal from the denial of his state habeas petition.9

17

For these grounds, the references to the fast-track statements are specific, and the arguments in the

18

fast-track statements are sufficient for respondents to file a response.

19

Grounds 3, 4, 4(B), 5(B), 5(C), 5(D), 6, and 7 incorporate claims by reference to Smith’s

20

state habeas petition, of which Smith attaches only the first few pages. In other circumstances, I

21

would require Smith to file a fourth-amended petition attaching these documents. However, Smith’s

22

statements regarding the presentation of these grounds to the state courts and the copies of the fast-

23
24
6

Coleman, 501 U.S. at 752.

7

Gibbons, 634 P.2d at 1216

8

Coleman, 501 U.S. at 752.

25
26
27
9

28

Ground 12 also incorporates by reference, but it is pleaded sufficiently in the body of the petition
itself.
Page 3 of 4

1

track statements that have been filed appear to indicate that Smith has not presented these grounds to

2

the Nevada Supreme Court. Thus, these grounds appear to be unexhausted under 28 U.S.C.

3

§ 2254(b), and respondents can raise that argument in their response. Finally, grounds 1, 2, and 12

4

contain sufficient factual allegations and warrant a response.

5
6

Conclusion
Accordingly, IT IS HEREBY ORDERED that grounds 2(B), 2(C), 5, 15, 16, and 19 are

7

DISMISSED in their entirety, and the ineffective-assistance-of-post-conviction-counsel claim

8

in ground 18 is DISMISSED. This action will proceed on grounds 1, 2, 3, 4, 4(B), 5(B), 5(C),

9

5(D), 5(E), 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, and on the ineffective-assistance-of-trial counsel

10
11

claim in ground 18.
Respondents must answer or otherwise respond to Smith’s third-amended petition by July

12

21, 2016. Respondents must raise all potential affirmative defenses in the initial responsive

13

pleading, including lack of exhaustion and procedural default. Successive motions to dismiss will

14

not be entertained. If respondents file an answer, the answer must comply with Rule 5 of the Rules

15

governing section 2254 cases in the United States district courts. Smith will have 45 days from

16

receipt of respondents’ answer to file his reply.

17
18
19

Dated July 6,6, 2016
June 2016
_________________________________
______________________
__ __ _ _
_
_
_ __
__
Jennifer A. Dorsey
Jennifer A
ni
ni
y
United States District Judge
ed States District Judge
d ta
rict u
i

20
21
22
23
24
25
26
27
28
Page 4 of 4