Filing 250

ORDERED that petitioner's motion for stay and abeyance (ECF No. 247 ) and motion for reconsideration (ECF No. 249 ) are both DENIED. IT IS FURTHER ORDERED that respondents shall have 60 days from the date this order is entered to file a nd serve an answer or other response to the fourth amended petition (ECF No. 244 ). IT IS FURTHER ORDERED that, in all other respects, the schedule set forth in the scheduling order entered on January 6, 2017 (ECF No. 241 ), shall remain in effect. Signed by Judge Kent J. Dawson on 10/22/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 RODNEY L. EMIL, 10 Petitioner, 11 vs. 12 TIMOTHY FILSON, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) / 3:00-cv-00654-KJD-VPC ORDER 15 16 On March 7, 2017, petitioner filed his fourth amended petition in this capital habeas case. 17 ECF No. 244. On June 14, 2017, petitioner filed a motion asking this court to stay proceedings and 18 hold them in abeyance until he exhausts state court remedies with respect to one of the claims in that 19 petition – i.e. a claim based on Hurst v. Florida, 136 S.Ct. 616 (2016). ECF No. 247. Petitioner has 20 also filed a motion asking this court to reconsider its previous order (ECF No. 246) denying his 21 motion to supplement his third amended petition with his Hurst claim. ECF No. 249. For the 22 reasons that follow, the motions are denied. 23 Motion to Stay 24 With his motion to stay, Emil asks the court to stay further proceedings in this case until he 25 completes state court litigation of his Hurst claim. Emil represents to this court that the state district 26 court has denied relief with respect to the claim, but that his appeal to the Nevada Supreme Court 1 remains pending. In Rhines v. Weber, 544 U.S. 269 (2005), the stay and abeyance procedure was condoned by 2 3 the Court as a means by which a habeas petitioner with a mixed petition subject to dismissal under 4 Rose v. Lundy, 455 U.S. 509 (1982), could fully exhaust his petition without the risk of running afoul 5 of the 1-year statutory time limit for filing federal petitions. Rhines, 544 U.S. at 276. The Court in 6 Rhines cautioned, however, that stay and abeyance, if too frequently used, would undermine 7 AEDPA's goals of prompt resolution of claims and deference to state court rulings. Id. Thus, the 8 Court held that, in order to obtain "stay and abeyance," a petitioner must show: 1) good cause for the 9 failure to exhaust claims in state court; 2) that unexhausted claims are potentially meritorious; and 3) 10 the absence of abusive tactics or intentional delay. Id.; Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 11 2005). 12 In Hurst, the Court held that Florida's capital sentencing scheme violated the Sixth 13 Amendment right to a jury trial because, under the scheme, the jury rendered an advisory verdict but 14 the judge ultimately found the facts necessary to impose a sentence of death. 136 S.Ct. at 624. In 15 reaching that holding, the Court relied upon Ring v. Arizona, 536 U.S. 584 (2002), which held that 16 any fact necessary for the imposition of the death penalty must be found by a jury, not a judge. 536 17 U.S. at 589. Ring and Hurst are both based on Apprendi v. New Jersey, 530 U.S. 466 (200), which 18 held that any fact that "expose[s] the defendant to a greater punishment than that authorized by the 19 jury's guilty verdict" is an "element" that must be submitted to a jury. 530 U.S. at 494. 20 Although a jury imposed the death penalty in Emil's case, he claims that his death sentence is 21 nonetheless unconstitutional under Hurst because the jury was not instructed that it must find beyond 22 a reasonable doubt that there are no mitigating circumstances sufficient to outweigh the aggravating 23 circumstances. Emil reasons that, under Hurst, the weighing of aggravating and mitigating factors is 24 an "element" that must be submitted to the jury and, as such, it necessarily follows that the 25 reasonable doubt standard imposed by the Fifth Amendment applies to the weighing process. 26 2 1 Emil's claim extends the holding in Hurst well beyond its cognizable bounds. Hurst does not 2 hold, as petitioner claims, that the weighing aggravating and mitigating circumstances is an 3 "element" that must be submitted to the jury. The Court in Hurst concluded that Florida's capital 4 sentencing scheme was unconstitutional because it "required the judge alone to find the existence of 5 an aggravating circumstance." Hurst, 136 S.Ct. at 624. The import of Hurst is its holding that the 6 jury's advisory role under Florida law fell short of complying with the Sixth Amendment 7 requirement of Apprendi and Ring.1 It did not break new ground with respect to what determinations 8 qualify as an "element" that must be submitted to a jury. 9 The Ninth Circuit has yet to conclusively resolve the issue in a reported decision, but has 10 noted that it is “highly skeptical” of the argument that “Nevada's scheme is unconstitutional because 11 it does not require the ‘weighing determination’ to be made beyond a reasonable doubt.” Ybarra v. 12 Filson, 869 F.3d 1016, 1030 (9th Cir. 2017). In this court’s view, the determination that there are no 13 mitigating circumstances sufficient to outweigh the aggravating circumstances is a matter of 14 subjective judgment, not a “fact” amenable to proof beyond a reasonable doubt. More 15 fundamentally, Emil’s claim that he was entitled to a "beyond a reasonable doubt" jury instruction 16 with respect to the weighing determination lacks the support of any controlling case law classifying 17 that determination as an “element” that must be determined by a jury. 18 And, even if Hurst creates a new rule supporting Emil's claim, Ybarra held that any such new 19 rule would not apply retroactively to cases on collateral review, such as this one. The court in 20 Ybarra “assum[ed] for the sake of argument” that Hurst “creates a new rule,” “establishes that the 21 ‘weighing determination’ is an element,” and “renders the Nevada sentencing scheme 22 unconstitutional,” but determined that, “even after making these generous assumptions,” the 23 1 24 25 The Court in Hurst made clear that it was overruling its prior cases upholding Florida's capital sentencing scheme (Spaziano v. Florida, 468 U.S. 447, 464 (1984) and Hildwin v. Florida, 490 U.S. 638, (1989)), but noted that it was doing so "to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury's factfinding, that is necessary for imposition of the death penalty." Hurst, 136 S.Ct. at 624 (emphasis added). 26 3 1 petitioner could not obtain relief under Hurst because the it does not apply retroactively. Id. at 1031- 2 33. 3 Based on the foregoing, this court concludes that Emil's claim based on Hurst has no 4 potential for success on its merits, so a stay of this action to allow for state-court exhaustion of the 5 claim is unwarranted. Emil's motion for stay and abeyance shall be denied. Motion for Reconsideration 6 7 On January 11, 2017, Emil filed a motion to supplement his third amended petition, asking 8 leave to add his Hurst claim to that pleading. ECF Nos. 242/243. This court denied the motion as 9 moot because, at the time the court ruled on it, Emil had already filed his fourth amended petition 10 including the Hurst claim. ECF No. 246. In seeking reconsideration of that decision, Emil states 11 that he is concerned that the claim may be ruled untimely because this fourth amended petition was 12 filed more than a year after the issuance of the Supreme Court’s decision in Hurst. 13 As discussed above, Emil’s Hurst claim fails on the merits. Even if that were not the case, 14 the timeliness of the claim under Emil’s scenario would depend upon 28 U.S.C. § 2244(d)(1)(C), 15 which provides that the 1-year period of limitation begins “the date on which the constitutional right 16 asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the 17 Supreme Court and made retroactively applicable to cases on collateral review.” Construing this 18 language, the Supreme Court has held that the statute starts running on the date the Court recognizes 19 the right, not on the date the Court makes it retroactively applicable. Dodd v. United States, 545 20 U.S. 353, 358 (2005).2 However, a petitioner “may take advantage of the date in the first clause . . . 21 only if the conditions in the second clause are met.” Id. at 359. 22 23 Therefore, a claim based on Hurst is timely under 28 U.S.C. § 2244(d)(1)(C) only if the following requirements are met: (1) the claim is filed no later than January 12, 2017; (2) the 24 2 25 Dodd addresses a provision in 28 U.S.C. § 2255 that is materially identical to 28 U.S.C. § 2244(d)(1)(C). “Dodd is equally applicable to section 2244(d)(1)(C).” Johnson v. Robert, 431 F.3d 992, 992–93 (7th Cir. 2005). 26 4 1 Supreme Court has recognized Hurst as a new rule no later than January 12, 2017; and (3) the 2 Supreme Court has declared Hurst retroactive no later than January 12, 2017. See id. at 359 (holding 3 that applicant “will be time barred except in the rare case in which this Court announces a new rule 4 of constitutional law and makes it retroactive within one year”). No decision issued by the Supreme 5 Court satisfies either of the latter two requirements. So even if this court deems Emil’s Hurst claim 6 as filed on January 11, 2017, the claim is time-barred under Dodd. Emil’s motion of reconsideration 7 shall be denied. 8 9 IT IS THEREFORE ORDERED that petitioner’s motion for stay and abeyance (ECF No. 247) and motion for reconsideration (ECF No. 249) are both DENIED. 10 IT IS FURTHER ORDERED that respondents shall have 60 days from the date this order 11 is entered to file and serve an answer or other response to the fourth amended petition (ECF No. 12 244). 13 14 15 IT IS FURTHER ORDERED that, in all other respects, the schedule set forth in the scheduling order entered on January 6, 2017 (ECF No. 241), shall remain in effect. DATED: October 22, 2017 16 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 5

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