Phillips v. Williams et al

Filing 14

ORDER Granting Respondents' 12 Motion to Partially Dismiss. Ground 8 is Dismissed from the 8 Amended Petition as procedurally defaulted. Respondents have 60 days from the date this Order is entered to file an Answer to the remaining c laims in the Petition. Petitioner has 30 days following service of Respondents' Answer to file a Reply. Petitioner shall respond to this Order within 30 days to either (1) indicate that the address on record with the court remains valid or (2) provide the court with a current mailing address. Signed by Judge James C. Mahan on 2/5/2018. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

7
8
9

JAMES CURTIS PHILLIPS,
10
Petitioner,

2:16-cv-02709-JCM-PAL

11
vs.
12
ORDER
13

BRIAN WILLIAMS, et al.,

14

Respondents.

15
16

This is a habeas corpus proceeding pursuant to 28 U.S.C. § 2254 brought by James Curtis

17

Phillips, a Nevada prisoner. On May 26, 2017, respondents filed a motion to partially dismiss

18

Phillips’ amended habeas petition (ECF No. 8), arguing that Ground 8 of the petition is either

19

untimely or procedurally defaulted. ECF No. 12. Phillips has not responded to the motion.1

20

Respondents’ argument as to the timeliness of Ground 8 is without merit. Respondents

21

concede that Phillips’ original habeas petition was filed within the one-year statutory period

22

imposed by 28 U.S.C. § 2244(d), but contend that Ground 8 was not raised until Phillips filed his

23

amended petition, which, according to respondents, was filed on February 13, 2017. They further

24

contend that the statutory period expired on February 11, 2017, and that Ground 8 does not “relate

25

back” to the original petition.

26
27
28

1

Based on the online records for the Nevada Department of Corrections, it appears as if
Phillips has been paroled. See http://167.154.2.76/inmatesearch/form.php. He has not provided this
court with a new address.

1

While February 13, 2017, is the date this court received the amended petition, the relevant

2

date is the date on which Phillips handed the pleading to prison authorities for delivery. See

3

Houston v. Lack, 487 U.S. 266, 276 (1988) (under the “mailbox rule” a pro se petition is deemed

4

filed when it is given to prison authorities for forwarding to the court clerk). It stands to reason that

5

it took at least two days for the amended petition to arrive at the court from the time Phillips turned

6

it over to prison officials. Thus, Phillips’ amended petition shall be deemed filed on or before

7

February 11, 2017.2 Accordingly, Ground 8 is not barred by § 2244(d).

8

Though Ground 8 is timely, respondents have, with respect to the claimed procedural default

9

of the claim, carried the initial burden of adequately pleading “the existence of an independent and

10

adequate state procedural ground as an affirmative defense.” Bennett v. Mueller, 322 F.3d 573, 586

11

(9th Cir. 2003). Specifically, they cite to this ruling by the Nevada Supreme Court:

12
13
14
15
16

Further, to the extent [PHILLIPS] separately claimed the State and the district
court breached the plea agreement, these claims were not properly raised in a
post-conviction petition for a writ of habeas corpus challenging a judgment of
conviction entered pursuant to a guilty plea. See NRS 34.810(1)(a). Therefore, the
district court did not err in denying the petition.
ECF No. 13-27, p. 3.
Under Bennett, the burden then shifts to the petitioner “to place that defense in issue,” which

17

the petitioner may do “by asserting specific factual allegations that demonstrate the inadequacy of

18

the state procedure, including citation to authority demonstrating inconsistent application of the

19

rule.” Id. at 586. Because Phillips has not responded to respondents’ motion, he has not met this

20

burden. Thus, this court concludes that Ground 8 is procedurally defaulted and shall dismiss it on

21

that basis.

22

Finally, this court suspects that Phillips has not kept the court informed of his current

23

address as required by Local Rule, LR IA 3-1. Consequently, he will be directed to comply with the

24
25
2

26
27
28

The court also notes that Phillips’ verification of the amended petition bears the date of
February 8, 2017. While that is not necessarily the date he handed the petition to prison authorities,
it lends support to a finding that Phillips should be credited with a filing date no later than February
11, 2017.
-2-

1
2

local rule or face dismissal of this action as provided in the rule.
IT IS THEREFORE ORDERED that respondents’ “Motion to Partially Dismiss Petition for

3

Writ of Habeas Corpus” (ECF No. 12) is GRANTED. Ground 8 is dismissed from the amended

4

petition (ECF No. 8) as procedurally defaulted.

5

IT IS FURTHER ORDERED that respondents’ shall have sixty (60) days from the date this

6

order is entered within which to file an answer to the remaining claims in the petition. Petitioner

7

shall have thirty (30) days following service of respondents' answer within which to file a reply.

8

IT IS FURTHER ORDERED that petitioner shall respond to this order within 30 days to

9

either (1) indicate that the address on record with the court (High Desert State Prison, PO Box 650,

10

Indian Springs, NV 89070-0650 ) remains valid or (2) provide the court with a current mailing

11

address. Petitioner’s failure to respond within the time allotted may result in the dismissal of his

12

petition.

13

DATED: February 5, 2018.

14
15

__________________________________
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
-3-