Ingebretsen v. Palmer
Filing
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ORDER granting in part and denying in part 109 Motion to Dismiss, dismissing Grounds 1, 3-5, and 7. Respondents to answer remaining claims within 45 days; Petitioner to reply within 30 days thereafter. Signed by Judge Larry R. Hicks on 9/8/2015. (Copies have been distributed pursuant to the NEF - KR)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JOHN INGEBRETSEN,
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Petitioner,
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vs.
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JACK PALMER, et al.,
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Respondents.
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____________________________________/
3:07-cv-00251-LRH-RAM
ORDER
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This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by John Ingebretsen. On
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January 20, 2015, respondents filed a motion to dismiss certain claims in Ingebretsen’s petition,
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arguing that all but one of his seven claims are unexhausted or, in the alternative, that four of those
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claims are procedurally defaulted, while two of them are not cognizable in this proceeding. Having
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been fully briefed, the motion is now before the court for decision.
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I. PROCEDURAL BACKGROUND
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Pursuant to a plea agreement, Ingebretsen was convicted in the Eighth Judicial District Court
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for the State of Nevada of attempted use of a minor in producing pornography (Count I), possession
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of child pornography (Count II), and open or gross lewdness (Count III). On direct appeal,
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Ingebretsen argued that his guilty pleas to these charges were not knowing and voluntary. The
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Nevada Supreme Court dismissed the appeal, noting that challenges to the validity of a guilty plea
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must be first presented in either a motion to withdraw the plea or a post-conviction petition.
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Ingebretsen then filed a petition for a writ of habeas corpus in the state district court. The
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court appointed counsel, who filed a motion to withdraw Ingebretsen’s guilty pleas. After a hearing,
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the court denied that motion. After appointment of new counsel, Ingebretsen filed a supplement to
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the habeas corpus petition. The district court denied the petition. On appeal, the Nevada Supreme
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Court affirmed.
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Ingebretsen then initiated this proceeding in May of 2007. In November of 2008, while this
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proceeding was pending, he filed a second state post-conviction petition. That proceeding concluded
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in February 2010, with the Nevada Supreme Court affirming the lower court’s decision that
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Ingebretsen did not meet the custody requirements for a state habeas proceeding because he had
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discharged his sentence and been released. In the meantime, Ingebretsen had filed a first amended
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petition in this proceeding, followed by a second amended petition in March of 2009.
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The State moved to dismiss the second amended petition, arguing, inter alia, that Grounds 1
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through 4 were unexhausted and that Ground 5 was not cognizable in a habeas proceeding This
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court granted the motion, concluding that Grounds 1 through 4 were unexhausted. It further
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concluded that Ground 5 was not justiciable because it challenged the validity of amendments to
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Nevada laws requiring sex offenders to register and those laws do not amount to custody for the
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purpose of habeas corpus jurisdiction.
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After Ingebretsen moved for reconsideration, this court concluded that Ground 5 was
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cognizable after all because restrictions imposed on him by the amendments to the sex offender laws
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served to distinguish this case from cases in which the Ninth Circuit had concluded that sex-offender
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registration requirements are not a significant enough restraint on one’s liberty to amount to custody.
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Ingebretsen was also permitted to file a third amended petition, which added Ground 7. This court
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subsequently granted Ingebretsen’s request for a stay to return to state court to exhaust Grounds 1
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through 4.
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After obtaining the stay, Ingebretsen attempted to present the unexhausted claims to the
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Nevada courts. The state district court again denied relief after finding that Ingebretsen was no
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longer under a sentence of imprisonment, and his claims were otherwise procedurally defaulted. On
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appeal, the Nevada Supreme Court affirmed the state district court’s ruling, finding that Ingebretsen
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was not eligible for post-conviction habeas relief because he did not meet the imprisonment
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requirement of Nev. Rev. Stat. § 34.724.
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In October of 2014, this court granted Ingebretsen’s request to re-open these proceedings.
Respondents subsequently filed the motion to dismiss addressed herein.
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II. EXHAUSTION
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A federal court will not grant a state prisoner's petition for habeas relief until the prisoner has
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exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28
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U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his
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claims before he presents those claims in a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S.
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838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains
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unexhausted until the petitioner has given the highest available state court the opportunity to
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consider the claim through direct appeal or state collateral review proceedings. See Casey v. Moore,
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386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir.1981).
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As noted above, the Nevada Supreme Court rejected Grounds 1 through 4 based on a
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conclusion that Ingebretsen had been discharged from custody when he brought the claims in state
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court. ECF No. 102-10. Relying on Roettgen v. Copeland, 33 F.3d 36 (9th Cir. 1994), respondents
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argue that Ingebretsen has failed to exhaust state court remedies for the claims because he presented
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them to the state court in a procedural context in which the merits of the claims were not likely to be
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considered.
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The problem with this argument is that the petitioner in Roettgen had an available method to
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present his claims to the state court in an appropriate manner. See Roettgen, 33 F.3d at 38
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(explaining that petitioner failed to exhaust his state court remedies because he filed a petition for
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writ of habeas corpus in the Arizona Supreme Court rather than seek post-conviction relief under
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Arizona’s Rules of Criminal Procedure). Here, any remedy Ingebretsen may have had in state court
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was foreclosed by the Nevada Supreme Court’s decision in Coleman v. State, 321 P.3d 863, 867
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(Nev. 2014), which held that a person who is subject only to lifetime supervision is not under a
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sentence of imprisonment within the meaning of Nev. Rev. Stat. § 34.724 and therefore cannot file a
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post-conviction petition for a writ of habeas corpus to challenge his sentence. Thus, the claims (i.e.,
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Grounds 1 through 4) are technically exhausted, but, as discussed below, still subject to the doctrine
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of procedural default. See Woodford v. Ngo, 548 U.S. 81, 93 (2006) (citing Coleman v. Thompson,
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501 U.S. 722, 744-51 (1991) and Gray v. Netherland, 518 U.S. 152, 162 (1996)).
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Respondents argue that Ground 5 is unexhausted because it has not been presented at all to
the Nevada Supreme Court in any proceeding. They also argue that Ground 7 is unexhausted
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because it had been presented in Ingebretsen’s second state post-conviction proceeding and, like
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Grounds 1 through 4, was dismissed based on Ingebretsen’s failure to meet the custody requirements
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of Nev. Rev. Stat. § 34.724. Despite having different procedural histories, these claims are in the
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same posture as Grounds 1 through 4 with respect to exhaustion – i.e., the unavailability of a state
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court remedy renders them exhausted.
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III. COGNIZABILITY
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Respondents argue that Grounds 5 and 7 are not cognizable in a federal habeas proceeding
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because they attack the means by which the State is imposing Ingebretsen’s sentence, not the fact or
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duration of his confinement itself. As discussed above, Ground 5 challenges the constitutionality of
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restrictions imposed on him by amendments to Nevada’s sex offender laws that were enacted in
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2007. In Ground 7, Ingebretsen alleges that the specific conditions imposed on him under the
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“lifetime supervision” provision of his guilty plea agreement and sentence are unconstitutional
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because he was not notified of those conditions until he was released from prison.
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A federal court may only grant a state prisoner's petition for writ of habeas corpus if the
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petitioner can show that “he is in custody in violation of the Constitution or laws or treaties of the
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United States.” 28 U.S.C. § 2254(a). This court has already determined that, with respect to Ground
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5, the restrictions imposed by the 2007 amendments constitute “custody” for the purposes of
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establishing habeas jurisdiction. ECF No. 86, p. 3. Respondents do not necessarily challenge that
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determination or argue that the same result would not apply to Ground 7. They argue, however, that
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the “in custody” requirement is a distinct issue from whether a particular claim challenges the fact or
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duration of confinement.
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A habeas corpus petition is the correct method for a prisoner to challenge the legality or
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duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v.
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Rodriguez, 411 U.S. 475, 485 (1973)). A civil rights action pursuant to 42 U.S.C. § 1983 is the
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proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson,
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500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574.
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The following passage from Wilkinson v. Dotson, 544 U.S. 74 (2005) is instructive:
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[T]he Court has focused on the need to ensure that state prisoners use only
habeas corpus (or similar state) remedies when they seek to invalidate the duration of
their confinement-either directly through an injunction compelling speedier release or
indirectly through a judicial determination that necessarily implies the unlawfulness
of the State's custody.
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Wilkinson, 544 U.S. at 81. On the other hand, § 1983 is available for procedural challenges where
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success in the action would not necessarily result in either the immediate or the speedier release of a
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prisoner from confinement. Id.
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Here, Ingebretsen challenges certain conditions imposed on him by the State in relation to his
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lifetime supervision, such as a curfew, mandatory polygraph examinations and counseling, and
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restrictions on his movements and his place of residence. Success in challenging these conditions
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would not result in an earlier release from custody because he would still be subject to lifetime
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supervision. He would only be relieved of compliance with these conditions. Thus, the appropriate
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vehicle for the claims set forth in Grounds 5 and 7 is an action under § 1983. The claims are not
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cognizable in a federal habeas petition and shall be dismissed without prejudice.
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IV. PROCEDURAL DEFAULT
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Ingebretsen concedes that Grounds 1 through 4 are subject to the procedural default doctrine,
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but he contends that he can establish cause and prejudice to overcome the default or, alternatively,
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that this court’s refusal to hear the claims on the merits will result in a miscarriage of justice. With
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respect to the former, he relies on Martinez v. Ryan, 132 S.Ct. 1308 (2012). In Martinez, the
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Supreme Court held that, in collateral proceedings that provide the first occasion to raise a claim of
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ineffective assistance at trial, ineffective assistance of post-conviction counsel in that proceeding
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may establish cause for a prisoner's procedural default of such a claim. Martinez, 132 S. Ct. at 1315.
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The Court stressed that its holding was a “narrow exception” to the rule in Coleman v. Thompson,
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501 U.S. 722 (1991), that “an attorney's ignorance or inadvertence in a postconviction proceeding
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does not qualify as cause to excuse a procedural default.” Id. In Ha Van Nguyen v. Curry, 736 F.3d
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1287 (9th Cir. 2013), the Ninth Circuit expanded Martinez to allow ineffective assistance of
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post-conviction counsel to be used as a means to excuse the default of claims of ineffective
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assistance of appellate counsel. Nguyen, 736 F.3d at 1295.
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Of Grounds 1 through 4, only Ground 2 is premised on an allegation of ineffective assistance
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of counsel. As such, that is the only claim to which the Martinez doctrine applies. See Hunton v.
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Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (declining to extend Martinez to underlying Brady
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claims), cert. denied, 134 S.Ct. 1771 (2014); see also Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th
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Cir. 2015) (declining to extend Martinez to cover claims other than ineffective assistance of trial or
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appellate counsel).
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In Ground 2, Ingebretsen alleges that he received ineffective assistance of trial counsel
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because counsel rushed him into entering guilty pleas without properly investigating the facts and
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law of the case and failed to insist, prior to the entry of the guilty pleas, that the State allow the
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defense to review the photographs supporting Counts I and II. This court may find “cause” under
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Martinez exists “where (1) the claim of ‘ineffective assistance of trial counsel’ was a ‘substantial’
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claim; (2) the ‘cause’ consisted of there being ‘no counsel’ or only ‘ineffective’ counsel during the
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state collateral review proceeding; (3) the state collateral review proceeding was the ‘initial’ review
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proceeding in respect to the ‘ineffective-assistance-of-trial-counsel claim’; and (4) state law requires
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that an ‘ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral
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proceeding.’” Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 132 S.Ct., at
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1318-19, 1320-21). Because the last two requirements are met, the cause and prejudice
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determination with respect to Ground Two is intertwined, to some extent, with the analysis on the
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merits of the claim. As such, the court will defer ruling on the cause and prejudice issue until the
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merits of Ground 2 are briefed in respondents’ answer and Ingbretsen’s reply brief.
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Lastly, this court rejects Ingebretsen’s arguments that his default of Grounds 1 through 4
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must be excused due to the potential for a fundamental miscarriage of justice. To prove a
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“fundamental miscarriage of justice,” petitioner must show that the constitutional error of which he
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complains “has probably resulted in the conviction of one who is actually innocent.” Bousley v.
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United States, 523 U.S. 614, 623 (1998) (citing Murray v. Carrier, 477 U.S. at 496). “[A]ctual
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innocence” is established when, in light of all the evidence, “it is more likely than not that no
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reasonable juror would have convicted [the petitioner].” Id. (quoting Schlup v. Delo, 513 U.S. 298,
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327-28 (1995)). The petitioner must establish his factual innocence of the crime, and not mere legal
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insufficiency. Id.; Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003).
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Moreover, “[t]o be credible, [a claim of actual innocence] requires petitioner to support his
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allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific
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evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at
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trial." Schlup, 513 U.S. at 324; Calderon v. Thompson, 523 U.S. 538, 559 (1998). Here, Ingebretsen
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proffers no new reliable evidence of the type contemplated by Schlup. As such, this is not one of the
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rare cases in which the petitioner can establish his actual innocence.
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Ingebretsen argues that Bousley, a case in which the petitioner had entered a guilty plea, did
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away with the requirement that the petitioner come forward with “new evidence” establishing his
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innocence. In Bousley, however, the petitioner argued that, in light of subsequent case law defining
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an element of the alleged crime, he could not, as a legal matter, have committed that crime. Bousley,
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523 U.S. at 617. The Court held that, in light of the subsequent case, the district court should have
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“permit[ted Bousley] to attempt to make a showing of actual innocence” to overcome his procedural
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default. Id. at 623. The Court reiterated “that ‘actual innocence’ means factual innocence, not mere
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legal insufficiency.” Id.
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Here, Ingebretsen does not identify any case law arising after the entry of his guilty plea that
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would call into question whether he committed the relevant crimes based on alleged conduct to
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which he admitted. Cf. Vosgien v. Persson, 742 F.3d 1131, 1135 (9th Cir. 2014) (holding that
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petitioner could establish his actual innocence where the State conceded that he could not, in light of
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an intervening case defining the crime, have committed the alleged crime of compelling prostitution
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based on the facts under which he was convicted). As such, Ingebretsen’s reliance on Bousley is
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misplaced.
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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 109) is
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GRANTED, in part, and DENIED, in part. For reasons discussed above Grounds 1, 3-5, and 7 are
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dismissed from the petition.
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IT IS FURTHER ORDERED that respondents’ shall have forty-five (45) days from the
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date this order is entered within which to file an answer to the remaining claims in the petition,
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including argument as to whether the procedural default of Ground 2 should be excused based on
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Martinez v. Ryan. Petitioner shall have thirty (30) days following service of respondents' answer
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within which to file a reply.
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Dated this 8th day of September, 2015.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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