McDonald v. Williams et al

Filing 30

ORDER. IT IS ORDERED that 23 Respondent' Motion to Dismiss is DENIED. Respondents must file an answer to Petitioner Charles E. McDonald's Amended Petition for Writ of Habeas Corpus (ECF No. 14 ) within 60 days of this order. McDonald will have 30 days from service of the answer within which to file a reply. Signed by Judge Richard F. Boulware, II on 11/16/2020. (Copies have been distributed pursuant to the NEF - JQC) Modified on 11/17/2020 to create hyperlink (DKJ).

Case 2:19-cv-00261-RFB-DJA Document 30 Filed 11/16/20 Page 1 of 7

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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CHARLES E. McDONALD,

Case No. 2:19-cv-00261-RFB-CWH

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Petitioner,
v.

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ORDER

BRIAN WILLIAMS, et al.,
(ECF No. 23)

Respondents.

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Petitioner Charles E. McDonald, a Nevada prisoner who is represented by counsel, brings

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this habeas corpus proceeding under 28 U.S.C. § 2254. Currently before the Court is Respondents’

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Motion to Dismiss (ECF No. 23). McDonald has opposed, and Respondents have replied. (ECF

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Nos. 25, 28.) For the reasons discussed below, the motion is denied without prejudice and

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Respondents will be allowed to renew their procedural default argument in the answer.

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BACKGROUND
I.

STATE CONVICTION, DIRECT APPEAL, AND POST-CONVICTION PROCEEDINGS

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McDonald challenges a conviction and sentence imposed by the Eighth Judicial District

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Court for Clark County (“state court”) for larceny from a victim 60 years of age or older and

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possession of stolen property. State of Nevada v. McDonald, Case No. C269134. Following a

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jury trial, the state court entered a judgment of conviction in January 2012, adjudicating McDonald

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as a habitual criminal and sentencing him to a maximum 20-year term with parole eligibility after

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a minimum of eight years. (ECF No. 16-7.) The Nevada Supreme Court affirmed the conviction

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on direct appeal. (ECF No. 16-18.)

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On February 6, 2013, McDonald filed a pro se petition for writ of habeas corpus (“state

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petition”) alleging that trial counsel was ineffective for failing to investigate McDonald’s

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competency given his mental health issues and failing to investigate an insanity defense. (ECF

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No. 16-23.) As relevant to the current motion, McDonald alleged, had trial counsel informed the

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state court of McDonald’s mental health issues, it “is highly unlikely the court would still have

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adjudicated petitioner a habitual criminal. Thus counsel[’]s deficient performance profoundly

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prejudiced petitioner with respect to sentencing.” (Id. at 13 (the “sentencing claim”).) The state

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court denied the state petition. (ECF Nos. 16-25, 16-30.)

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McDonald filed a post-conviction appeal pro se. In February 2014, the Nevada Supreme

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Court held that the lack of post-conviction counsel prevented meaningful litigation of the state

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petition. (ECF No. 17-4 at 3.) Although the record indicated that trial counsel and the state court

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were aware of McDonald’s mental health issues, no competency evaluation was conducted before

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trial and the record was silent regarding trial counsel’s investigation and actions given McDonald’s

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mental health history. (Id.) Thus, the Nevada Supreme Court reversed and remanded for

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appointment of counsel. (Id. at 4.)

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On remand, the state court appointed post-conviction counsel, who filed a supplement to

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McDonald’s state petition. (ECF No. 17-13.) Following oral argument, the state court denied

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relief. (ECF No. 17-17.) McDonald filed a second post-conviction appeal through counsel. (ECF

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No. 17-21.) The Nevada Court of Appeals affirmed in part and reversed in part, remanding the

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case for a second time. (ECF No. 17-27.) The appellate court held, “an evidentiary hearing is

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necessary to ascertain whether counsel undertook any actions regarding McDonald’s mental

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health, what decisions counsel made, if any, regarding the pursuit of a competency evaluation, and

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to evaluate the merits of McDonald’s assertion he was incompetent during his trial and sentencing

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hearing.” (Id. at 4.)

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Thereafter, the state court conducted an evidentiary hearing and denied relief. (ECF

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Nos. 18-1, 18-2.) McDonald filed a third post-conviction appeal. (ECF No. 18-7.) The Nevada

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Court of Appeals affirmed the denial of relief, and a remittitur issued the following month. (ECF

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Nos. 18-12, 18-14.)

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II.

FEDERAL HABEAS PROCEEDINGS

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McDonald initiated this federal habeas corpus proceeding in February 2019. (ECF No. 1.)

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Upon screening the pro se petition, the Court granted his pauper application, appointed the Federal

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Public Defender, and granted leave to amend the petition. (ECF No. 8.) McDonald’s counseled

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First Amended Petition for Writ of Habeas Corpus (ECF No. 14) alleges five grounds for relief

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under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution:
1. Trial counsel ineffectively failed to investigate McDonald’s mental health issues and

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request a competency exam. (Id. at 7–11.)

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2. Trial counsel ineffectively failed to investigate McDonald’s mental health issues

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thereby depriving McDonald of an insanity defense. (Id. at 11–14.)

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3. McDonald’s attorney ineffectively failed to investigate or present any mitigation at

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McDonald’s sentencing. (Id. at 15–17.)

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4. Trial counsel ineffectively failed to show McDonald Exhibit 8, a video footage still of

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the crime scene before telling him to go to trial. (Id. at 17–18.)

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5. McDonald was convicted on insufficient evidence in violation of his rights to due

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process and a fair trial. (Id. at 18–19.)

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DISCUSSION

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Respondents move to dismiss Ground Three as unexhausted. (ECF No. 23.) A state

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prisoner first must exhaust state remedies on a habeas claim before presenting that claim to the

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federal courts. 28 U.S.C. § 2254(b)(1)(A). To be exhausted, a claim must have been raised

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through one complete round of either direct appeal or collateral proceedings. O’Sullivan v.

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Boerckel, 526 U.S. 838, 844–45 (1999). However, a federal court need not dismiss a claim on

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exhaustion grounds if it is clear the state court would find the claim procedurally barred under state

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law. Castille v. Peoples, 489 U.S. 346, 351 (1989); Dickens v. Ryan, 740 F.3d 1302, 1317 (9th

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Cir. 2014) (en banc) (“An unexhausted claim will be procedurally defaulted, if state procedural

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rules would now bar the petitioner from bringing the claim in state court.”). Where a petitioner

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has procedurally defaulted a claim, the claim is technically exhausted and federal review is barred

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unless he “can demonstrate cause for the default and actual prejudice as a result of the alleged

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violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 735 n.1, 750 (1991).
McDonald agrees that Ground Three is not exhausted, 1 but asserts it is technically

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The Amended Petition asserts that Ground Three is exhausted; however, upon further review of the record
and Respondents’ motion, McDonald now agrees that the claim is not exhausted. (ECF No. 25 at 2 n.2.)

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exhausted and procedurally defaulted. (ECF No. 25 at 4–5.) He admits that he would face multiple

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procedural bars if he were to return to state court with his unexhausted claim. See NRS 34.726,

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NRS 34.810. However, Nevada’s procedural bars can be excused by a showing of cause and

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prejudice or actual innocence, which are substantially the same as the federal standards. If a

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petitioner has a potentially viable cause-and-prejudice or actual-innocence argument, then he

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cannot establish that “it is clear that the state court would hold the claim procedurally barred,” and

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the ground is not technically exhausted. Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002).

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For that reason, judges in this district generally decline to find a claim technically exhausted unless

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the petitioner represents that he would be unable to establish cause and prejudice or actual

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innocence in a return to state court. In such a case, the claim is generally subject to immediate

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dismissal as procedurally defaulted. But, when federal law recognizes a potential basis to excuse

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a procedural default and Nevada courts do not, then the petitioner can argue in federal court both

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that a ground is technically exhausted and that an excuse for the procedural default exists.

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“Generally, post-conviction counsel’s ineffectiveness does not qualify as cause to excuse

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a procedural default.” Ramirez v. Ryan, 937 F.3d 1230, 1241 (9th Cir. 2019) (citing Coleman,

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501 U.S. at 754–55). However, the Supreme Court created a narrow exception to that general rule

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in Martinez v. Ryan, 566 U.S. 1 (2012). 2 Id. “Under Martinez, the procedural default of a

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substantial claim of ineffective assistance of trial counsel is excused, if state law requires that all

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claims be brought in the initial collateral review proceeding … and if in that proceeding there was

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no counsel or counsel was ineffective.” Id. (citing Martinez, 566 U.S. at 17). However, the

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Martinez exception cannot excuse a procedural default for substantive claims of trial-court error,

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appellate-level IAC claims, or “attorney errors in other kinds of proceedings, including appeals

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from initial-review collateral proceedings, second or successive collateral proceedings, and

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petitions for discretionary review in a State’s appellate courts.” Martinez, 566 U.S. at 16–7; Davila

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The Nevada Supreme Court does not recognize Martinez as cause to overcome a state procedural bar
pursuant to Nevada law. Brown v. McDaniel, 130 Nev. 565, 571–76, 331 P.3d 867, 871–75 (2014) (en
banc). Thus, a Nevada habeas petitioner who relies on Martinez—and only Martinez—as a basis for
overcoming a state procedural bar on an unexhausted claim can successfully argue that the state courts
would hold the claim procedurally barred, but that he nonetheless has a potentially viable argument for
cause and prejudice under federal law.

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v. Davis, 137 S. Ct. 2058, 2064 (2017).
To establish cause and prejudice for a trial-level IAC claim under Martinez, a petitioner
must show that:

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(1) post-conviction counsel performed deficiently; (2) there was a reasonable
probability that, absent the deficient performance, the result of the post-conviction
proceedings would have been different, and (3) the underlying ineffectiveassistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.

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Id. at 1242 (internal quotation omitted). The first and second “cause” prongs of the Martinez test

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are derived from Strickland v. Washington, 466 U.S. 668 (1984). Id. at 1241. A habeas court’s

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determination of the second prong “is necessarily connected to the strength of the argument that

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trial counsel’s assistance was ineffective.” Id. (quoting Clabourne v. Ryan, 745 F.3d 362, 377 (9th

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Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015)

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(en banc)). The third “prejudice” prong directs the court to assess the merits of the underlying

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trial-level IAC claim. Id. A default will not be excused if the claim “is insubstantial,” i.e., it lacks

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merit or is “wholly without factual support.” Id. (quoting Martinez, 566 U.S. at 14–16).

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McDonald represents that no exceptions are available to save Ground Three in Nevada

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courts but argues he can overcome the default under the Martinez test. (ECF No. 25 at 5.) The

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Court therefore reads his opposition as conceding that Martinez is the only potential basis to excuse

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the default and find the claim technically exhausted on that basis.

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McDonald represents that Ground Three of the Amended Petition is analogous to the

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sentencing claim he raised in the pro se state petition. (ECF No. 25 at 2.) Ground Three contends

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that trial counsel ineffectively failed to investigate McDonald’s history of mental illness or present

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any related mitigation evidence at sentencing. (ECF No. 14 at 15–17.) The sentencing claim

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raised a similar IAC allegation, arguing the state court would not have adjudicated McDonald as

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a habitual criminal if trial counsel had informed the state court of McDonald’s mental health issues,

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and trial counsel’s deficient performance prejudiced McDonald at sentencing. (ECF No. 16-23 at

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13.) However, on remand, post-conviction counsel failed to include the sentencing claim in

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McDonald’s supplement or raise the issue in the second or third post-conviction appeals. (ECF

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Nos. 17-13, 17-21, 18-7.)

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McDonald contends that post-conviction counsel was ineffective for failing to raise Ground

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Three during the state post-conviction proceedings because there was no strategic reason to forego

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the claim. (ECF No. 25 at 6–9.) Even if post-conviction counsel simply did not notice the

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sentencing claim in the pro se state petition, McDonald argues that post-conviction counsel should

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have known to raise Ground Three in light of the Nevada Supreme Court’s remand for appointment

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of counsel to litigate mental illness and competency issues. McDonald also asserts that the

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underlying IAC claim is substantial. He claims he told trial counsel of his history of mental

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illness—including PTSD, mood disorder, severe depression, psychiatric in-patient and out-patient

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treatment, and psychiatric medications—yet counsel did not request a psychiatric examination.

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According to McDonald, further investigation would have revealed diagnoses of schizophrenia

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and bipolar disorder, involuntary commitment, roughly 25 examinations by psychiatrists and

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psychologists, and numerous findings of incompetence.

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investigate, McDonald argues the state court did not know the extent of his mental illness. Had

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counsel investigated his mental illness and presented a complete picture at sentencing, McDonald

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maintains that the state court may not have adjudicated him as a habitual felon.

Due to trial counsel’s failure to

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Respondents assert that McDonald fails to demonstrate cause and prejudice under Martinez

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to overcome the default of Ground Three. (ECF No. 28 at 3–4.) They claim McDonald has not

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shown that presenting additional evidence during the penalty phase would have resulted in a

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different sentence. According to Respondents, both McDonald and trial counsel spoke to the judge

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about McDonald’s mental health issues and requested that McDonald be placed with an in-patient

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mental health program, while prosecutors argued that McDonald should be adjudicated under the

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large habitual criminal statute, and the state court ultimately imposed a mid-level sentence.

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Respondents contend this shows trial counsel developed mitigation evidence during sentencing,

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and McDonald therefore fails to show deficient performance or prejudice.

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The Court finds that the cause-and-prejudice analysis regarding Ground Three is

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necessarily connected to the merits of the claim itself and will defer a decision on both questions

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until a merits determination. The motion is therefore denied without prejudice. Respondents may

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renew their procedural default argument for Ground Three in the answer.

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Case 2:19-cv-00261-RFB-DJA Document 30 Filed 11/16/20 Page 7 of 7

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IT IS THEREFORE ORDERED:

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1. Respondents’ Motion to Dismiss (ECF No. 23) is DENIED.

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2. Respondents must file an answer to Petitioner Charles E. McDonald’s Amended

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Petition for Writ of Habeas Corpus (ECF No. 14) within 60 days of this order.

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3. McDonald will have 30 days from service of the answer within which to file a reply.

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DATED this 16th day of November 2020.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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