Mayo v. Williams et al

Filing 36

ORDER Denying Petitioner's 30 Motion for Stay and Abeyance. Respondents' answer to 6 Petition for Writ of Habeas Corpus is due 11/1/2017. The Clerk of the Court must substitute Jo Gentry for Brian E. Williams, Sr. on the docket and update the caption of the action to reflect this change. Signed by Judge Jennifer A. Dorsey on 8/3/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Arthur Daniel Mayo,

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Petitioner

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v.

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2:16-cv-0599-JAD-GWF
Order Denying Motion to Stay

Jo Gentry, et. al,

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[ECF No. 30]

Respondents

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In this habeas corpus action, Nevada prisoner Arthur Daniel Mayo challenges his 2014

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state-court conviction for possession of a stolen vehicle.1 The Court ruled on respondents’

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motion to dismiss on November 21, 2016, found one of Mayo’s claims—his Supplemental

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Ground 1—unexhausted in state court, and gave Mayo an opportunity to make an election on

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how to proceed.2 Mayo responded with a motion for stay (ECF No. 30), requesting that this case

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be stayed while he exhausts Supplemental Ground 1 in state court.3 On April 18, 2017, I ordered

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supplemental briefing (ECF No. 33) on the question of the possible anticipatory procedural

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default of Supplemental Ground 1 in state court.4

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In Supplemental Ground 1, Mayo claims that he was denied his federal constitutional

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right to effective assistance of counsel because his counsel misadvised him with respect to a plea

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agreement, leading him to enter a plea agreement that he otherwise would not have entered. See

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Memorandum (ECF No. 13) at 2–3. It is this claim that Mayo wishes to present in state court

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before proceeding with this case.

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ECF No. 6.

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See Order entered November 21, 2016 (ECF No. 29).

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Respondents filed an opposition to that motion on February 2, 2017 (ECF No. 31). Mayo
replied on February 21, 2017 (ECF No. 32).

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On May 15, 2017, respondents filed a supplement to their opposition to Mayo’s motion for stay
(ECF No. 34). On June 12, 2017, Mayo filed a supplemental reply (ECF No. 35).

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But Mayo’s Supplemental Ground 1 is now procedurally barred in state court. See NRS

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34.726(1) (statute of limitations); NRS 34.810 (successive petitions). Mayo asserts only one

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viable argument that there is cause for his failure to raise that claim previously in state court: that

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he did not have counsel in his first state habeas action. See Martinez v. Ryan, 566 U.S. 1, 17

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(2012) (lack of counsel in initial-review collateral proceeding in state court may function as

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cause to overcome procedural default in federal court). While lack of counsel in Mayo’s state

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habeas action may function as cause to overcome the procedural default in this federal habeas

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action, see Martinez, 566 U.S. at 17, the same is not true in Nevada state courts: they have not

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recognized this basis as cause for a procedural default in non-capital cases in state court. See

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Brown v. McDaniel, 331 P.3d 867, 875 (Nev. 2014) (declining to adopt Martinez rule as a matter

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of state law). Because Mayo’s Supplemental Ground 1 is procedurally barred in state court, and

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he does not assert any viable argument that he can overcome that procedural bar, a stay of this

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action to allow Mayo to return to state court to exhaust that claim would be futile. For this

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reason, I deny Mayo’s motion for stay.

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I thus treat Mayo’s Supplemental Ground 1 as technically exhausted, but subject to the

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procedural-default doctrine. In their answer, respondents may assert procedural default as a

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defense to any of Mayo’s claims, including Supplemental Ground, and they must address the

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merits of each of Mayo’s claims. In his reply to respondents’ answer, Mayo may assert, as cause

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for his procedural default of any claim including Supplemental Ground 1, that he did not have

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counsel in his state habeas action. See Martinez, 566 U.S. at 17. Mayo should also address the

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merits of each of his claims.

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As a final matter, Mayo remains incarcerated at Nevada’s Southern Desert Correctional

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Center (SDCC). Jo Gentry is now the warden of SDCC. Therefore, under Federal Rule of Civil

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Procedure 25(d), Jo Gentry will be substituted for Brian Williams as the respondent warden in

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this action.

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ORDER
IT IS THEREFORE ORDERED that petitioner’s Motion for Stay and Abeyance (ECF
No. 30) is DENIED.

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IT IS FURTHER ORDERED that respondents have until November 1, 2017, to file an

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answer that responds to all of petitioner’s claims for habeas corpus relief as described above. In

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all other respects, the schedule in the order entered April 20, 2016 (ECF No. 5) remains in effect

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(petitioner will have 60 days following respondents’ answer to file a reply).

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IT IS FURTHER ORDERED that the Clerk of the Court must substitute Jo Gentry for
Brian E. Williams, Sr., on the docket for this case, as the respondent warden, and update the
caption of the action to reflect this change.
DATED: August 3, 2017

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_______________________________
__________________
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Jennifer A. Dorsey
ifer A. Dorsey
r
United States District Judge
ed
ct Judge
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