Carey v. McDaniel et al

Filing 8

ORDER - Amended Petition due by 8/9/2012. Show Cause Response due by 8/9/2012. (see pdf order for specifics) Signed by Judge Edward C. Reed, Jr on 7/9/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GORDON M. CAREY,
Petitioner,

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3:10-cv-00143-ECR-WGC

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vs.

ORDER

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E.K. MCDANIEL, et al.,
Respondents.

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This represented habeas matter under 28 U.S.C. § 2254 currently is before the Court

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on a sua sponte screening inquiry into whether the petition should be dismissed with prejudice

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on the merits. This order follows upon an earlier show cause order (#5) directed to the merits

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and petitioner’s response (#6) thereto. Following review, it appears that petitioner’s show-

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cause response seeks to pursue a legal claim that: (a) was not pled in the federal petition;

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and (b) was not exhausted in the state courts.

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Background

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Petitioner Gordon Carey challenges the weapon enhancement sentence on his

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Nevada state conviction, pursuant to a guilty plea, of second-degree murder with the use of

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a firearm. He was sentenced to two consecutive terms of 10 to 25 years.

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On February 28, 2008, Carey pled guilty to second-degree murder with the use of a

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firearm in the murder of George Kelly, Jr., on November 18, 2006. #4, Exhs. 2-4. Under the

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law in place when Carey committed the offense on November 18, 2006, N.R.S. 193.165

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provided for an automatic sentencing enhancement of an additional consecutive sentence

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equal to the sentence imposed on the primary offense in question when a firearm was used.1

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The statute thereafter was amended to provide for a more flexible sentencing structure on the

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weapon enhancement sentence, with a statutory maximum on the consecutive enhancement

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sentence of 20 years.2 The amendment became effective on July 1, 2007.

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It was expressly acknowledged in the written plea agreement and during the plea

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colloquy that the parties remained free to argue their respective positions as to whether the

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amendment should be applied to petitioner’s sentencing. Carey entered the plea expressly

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with the understanding that the state courts might reject his argument that the new law should

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apply to his case and hold that the amendment did not apply to his sentencing.3

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On June 12, 2008, the matter came on for sentencing. The state district court rejected

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Carey’s argument that the amendment should apply to his case. The court sentenced him

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to two equal and consecutive terms each of 10 to 25 years.4

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The judgment of conviction was filed the same day, and Carey timely appealed.5

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On July 24, 2008, the Supreme Court of Nevada issued its decision in State v. Second

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Judicial District Court (Pullin), 124 Nev. 564, 188 P.3d 1079 (2008). In Pullin, the state

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supreme court held that, under Nevada state law, the July 1, 2007, amendment to 193.165

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did not apply retroactively to offenders who committed their crimes prior to the effective date

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of the amendment but who were sentenced after that date.

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On August 25, 2009, in Carey’s case, the Supreme Court of Nevada affirmed the
district court decision and sentencing. The state supreme court held:
The sole issue raised in this appeal is whether the district
court erred in refusing to apply the ameliorative amendments to

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N.R.S. 193.165, as amended through Laws 1995, p. 1431.

See N.R.S. 193.165, as amended by Laws 2007, c. 525, § 13 (adopted pursuant to Assem bly Bill
No. 510).

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#4, Ex. 3, at 3; id., Ex. 4, at 4-5 & 7-8.

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#4, Ex. 6C, at 107-110.

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#4, Exhs. 7 & 8.

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the deadly weapon enhancement statute that took effect after
Carey committed the underlying offense but before he was
sentenced. Although Carey recognizes that this court recently
considered this issue in State v. Dist. Ct. (Pullin), 124 Nev. ___,
188 P.3d 1079 (2008), and held that the 2007 amendments to
NRS 193.165 do not apply to offenses committed before the
effective date of the amendments, Carey argues that federal
constitutional law requires retroactive application of the
amendments and urges this court to reconsider our decision in
Pullin.
We disagree with Carey’s assertion that federal
constitutional law requires retroactive application of the 2007
amendments to NRS 193.165, and we decline to reconsider our
decision in Pullin. Consistent with our decision in Pullin, we
conclude that Carey’s argument lacks merit. . . . .

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#4, Ex. 13.
Petitioner filed the federal petition through counsel on March 12, 2010. He alleged
therein:

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Petitioner made clear [to the state supreme court] in his
Fast Track Statement and in his Supplemental Fast Track
Statement that, even if Pullin could be considered as a correct
decision as a matter of state law, as a matter of Federal
Constitutional principles, including and especially the ex-post
facto clause and the doctrine of lenity, Pullin is incorrectly
decided. When the subject at hand is an amended penal statute
which is an ameliorative sentencing statute as here, per Dobbert
v. Florida, 432 U.S. 282, 293-94 (1977) and United States v.
Santos, ___ U.S. ___, 128 S.Ct. 2020 (2008), the court must
apply the ameliorative version of the statute in effect as of the
date of sentencing. That is because in this case the legislature
left it ambiguous as to whether the amended sentencing statute
would apply to crimes committed before the passage of the
amended statute viz. sentencings occurring after it or not. See
also: United States v. Lanier, 520 U.S. 259, 266 (1997).

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.....

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[The state supreme court’s] decision constitutes an
unreasonable application of Doboert [sic], Lanier, and Santos,
and thus cannot be afforded the presumption of legal correctness
per 28 U.S.C. § 2254(d)(1).

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#1, at 4-5 (underline emphasis in original).6

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The petition then states: “This ground is developed m ore extensively in the separate attachm ent.”
There was no separate attachm ent further developing the ground. If there had been, the Court would have
directed petitioner to file an am ended petition setting forth the entirety of his claim within the four corners of
the petition. Petitioner’s grounds m ust be set forth within the verified petition itself. As discussed further,
infra, habeas pleading is not notice pleading.

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In the prior show-cause order, the Court, following an extended analysis of the legal
claim presented and supporting case citations, posited, inter alia:
Application of the foregoing five Supreme Court decisions
to petitioner’s case reflects the following.
At the time of Carey’s offense, . . . N.R.S. 193.165
provided – with absolutely no ambiguity – that “any person who
uses a firearm or other deadly weapon . . . in the commission of
a crime shall be punished by imprisonment in the state prison for
a term equal to and in addition to the term of imprisonment
prescribed by statute for the crime,” with the sentence running
consecutively with the sentence imposed for the crime. Nothing
in the holdings of the four “rule of lenity” decisions relied upon by
petitioner would dictate anything other than a direct application of
the unambiguous language of the statute as of the time of the
offense. Anyone reading the statute at the time of Carey’s
offense would have had not only a fair, but indeed an explicitly
clear, warning that they would be subjected to twice the
punishment for committing the crime with the use of a firearm.
Petitioner, of course, seeks to draw from the lenity cases
an overarching rule that any time that there – allegedly – is an
ambiguity on any statutory issue of any nature concerning a
criminal conviction, the Due Process Clause of the Fourteenth
Amendment requires the States to resolve the issue in the
defendant’s favor. No such holding applicable to this case was
made in the four lenity cases cited. The four cases all involved
construction of Congressional legislative intent in defining an
element of an offense rather than any question, much less a
constitutional question, of required retroactivity of a post-offense
change to a state sentencing statute.
With regard to the Dobbert decision, petitioner urges that
Dobbert requires that “the court must apply the ameliorative
version of the statute in effect as of the date of sentencing.”
Dobbert was not presented with any such issue, did not express
any opinion on any such issue, and clearly made no holding on
any such issue. Dobbert instead addressed an issue as to
whether the Ex Post Facto Clause prohibited such retroactive
application of an ameliorative sentencing statute, and it held that
it did not. The Ex Post Facto Clause of course has no remotely
conceivable application to the present petitioner’s case, given that
the law in force on the date of his offense was applied to his case.
Dobbert made no holding as to the Due Process Clause, much
less one applicable to the present case, and the opinion does not
even mention that provision of the Constitution. Nothing in the
opinion suggests the Due Process Clause requires that an
ameliorative sentencing statute be applied retroactively.
Under the AEDPA, the state courts must follow the
holdings of the United States Supreme Court, not dicta in its
opinions. See,e.g., Cheney v. Washington, 614 F.3d 987, 993-94
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(9th Cir. 2010). If no Supreme Court precedent creates clearly
established federal law relating to the legal issue that the habeas
petitioner raised in state court, the state court's decision cannot
be contrary to or an unreasonable application of clearly
established federal law. E.g., Brewer v. Hall, 378 F.3d 952, 955
(9th Cir.2004). None of the five Supreme Court decisions relied
upon by petitioner hold that the Due Process Clause requires
States to apply an ameliorative sentencing statute retroactively
absent a contrary expression of legislative intent. None of the five
decisions were presented with such an issue. None of the
decisions even discussed such an issue in dicta, which the
Supreme Court of Nevada in any event would not have been
bound to follow. The state supreme court’s rejection of
petitioner’s claim based upon these United States Supreme Court
decisions thus clearly was neither contrary to nor an
unreasonable application of clearly established federal law under
the AEDPA.
#5, at 10-11 (further explanatory footnotes omitted).
In his show-cause response, petitioner, inter alia, pursued the following legal claim:
This is a one ground Petition that, in the first instance,
concerns an issue of state law. Petitioner is well aware that
generally, a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds
a federal court sitting in habeas corpus. Bradshaw v. Richey, 546
U.S. 74, 76 (2005).
An exception to that, however, is based upon Bouie v. City
of Columbia, 378 U.S. 347, 353 (1964): Where the state court
applies a new interpretation that is unforeseeable and detrimental
to the defendant retroactively to him, such as unforeseeably to
enlarge judicially the meaning of a criminal statute, such activity
violates a federal due process right of the petitioner and such is
in fact cognizable in federal habeas. See: Clark v. Brown, post;
Hagan v. Caspari, 50 F.3d 542 (8th Cir. 1995); Lopez v. McCotter,
875 F.2d 273 (10th Cir.), cert. denied, 493 U.S. 996 (1989).
.....
. . . . Post AEDPA, the Ninth Circuit’s treatment of this
issue in Clark v. Brown, 450 F.3d 898 (9th Cir.), cert. denied, 549
U.S.1027 (2006), makes relatively clear that the principle to be
“reasonably applied” [under the AEDPA standard of review] is a
general but consistent principle [under petitioner’s distinction,
which is not tacitly accepted herein by the Court, between “factspecific” and “general” cases in applying the AEDPA standard of
review ]. In Clark, the Ninth Circuit held that the state court’s
retroactive application of a new interpretation of a prior state
supreme court decision regarding the felony murder special
circumstances statute on direct review violated the defendant’s
due process rights to a fair warning that his conduct made him
death eligible at his sentencing. An unforeseeable judicial
enlargement of a criminal statute, applied retroactively, violates
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the petitioner’s federal due process rights to a fair warning of what
constitutes criminal conduct. See: Clark, 450 F.3d at 909-16.
The Ninth Circuit did not cite to a specific United States Supreme
Court case with a fact pattern similar to Clark’s. Rather, it cited
generally to the principles of Bouie v. City of Columbia, 378 U.S.
347, 353 (1964), a case with essentially the same principle as
Lanier, Le Grand v. Stewart, 133 F.3d 1253, 1260 (9th Cir. 1998)
[the due process clause protects criminal defendants against
novel developments in judicial doctrine] and McSherry v. Block,
880 F.2d 1049, 1053 (9th Cir. 1989) [crucial test is whether the
construction actually given the statute was foreseeable].

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#6, at 1-2 & 8-9.

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Petitioner alleged no claim in the original federal petition asserting that the state

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supreme court denied him due process of law by unforeseeably enlarging the meaning of a

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criminal statute through an unforeseeable and detrimental new interpretation in Pullin that was

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applied retroactively to him.

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Petitioner presented no claim to the state supreme court that its decisions denied him

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due process of law by unforeseeably enlarging the meaning of a criminal statute through an

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unforeseeable and detrimental new interpretation in Pullin that was applied retroactively to

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him.7
Discussion

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Federal habeas pleading is not notice pleading. Mayle v. Felix, 545 U.S. 644, 655

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(2005). Rather, under Rule 2(c) of the Rules Governing Section 2254 Cases [the “Habeas

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Rules”], a petitioner must “specify all the grounds available for relief available to the petitioner”

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and further must “state the facts supporting each ground.”

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Petitioner specified no ground in the original petition that he was deprived of due

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process of law by an unforeseeable enlargement of a criminal statute through an

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unforeseeable and detrimental new judicial interpretation of state law. He instead claimed

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that an alleged federal constitutional “rule of lenity” required the retroactive application of the

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ameliorative state sentencing statute. A claim that the federal constitution required retroactive

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application of a state statute is legally distinct from a claim that a state judicial decision denied

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See #4, Exhs. 9 & 11.

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a petitioner due process because it construed state law in an unforeseeable manner. Inter

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alia, the first claim does not require proof that the state court’s construction of the state statute

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was new and unforeseeable given that the claim instead could be actionable even if the

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challenged state rule was well-established. In contrast, the latter claim is actionable even if

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the later judicial construction of state law otherwise would be permissible under federal law.

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That is, the first claim is based on a premise that federal law does not permit the statute to

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apply retroactively in any circumstance, without regard to whether or not the state courts

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allegedly have changed their interpretation of the state law. The second claim instead is

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based on a premise that a state judicial decision may not unforeseeably enlarge state criminal

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law, without regard to whether or not federal constitutional law otherwise would bar the new

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state law ruling in question. Those are distinct legal claims, based upon different factual and

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legal premises that operate independently of one another.

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The Court is not persuaded that the rule in Bouie constitutes merely an exception to

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a “principle of interpretation” otherwise requiring federal courts to defer to state court

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interpretations of state law. If a federal court applies the rule in Bouie to overturn a conviction

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or sentence, it is not merely placing a different interpretation on state law. It instead is holding

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that the petitioner was deprived of due process of law by the state judicial interpretation of

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state law. Such action represents a grant of relief based upon an independent substantive

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claim of a constitutional due process violation in its own right, not merely an application of a

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different interpretation of state law.

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Accordingly, if petitioner wishes to seek relief herein based upon a Bouie claim that

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he was deprived of due process of law due to an unforeseeable enlargement of a criminal

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statute through an unforeseeable and detrimental new judicial interpretation of state law, he

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must affirmatively allege such a claim in his petition. He may not instead pursue such a claim

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either in addition to or in lieu of the claim in the original petition without amending the petition.

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Cf. Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994)(petitioner may not use the

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federal reply to amend the petition). The Court expresses no opinion at this juncture as to

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whether any such claim relates back to the claim in the original petition.
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If petitioner does amend the petition to assert a Bouie claim, he then must show cause
why the petition, as amended, is not subject to dismissal as a mixed petition.

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Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his state court

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remedies on a claim before presenting that claim to the federal courts. To satisfy this

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exhaustion requirement, the claim must have been fairly presented to the state courts

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completely through to the highest court available, in this case the Supreme Court of Nevada.

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E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329

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F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must refer to the specific

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federal constitutional guarantee and must also state the facts that entitle the petitioner to relief

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on the federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir.

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2000). That is, fair presentation requires that the petitioner present the state courts with both

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the operative facts and the federal legal theory upon which his claim is based. E.g., Castillo

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v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement insures that the

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state courts, as a matter of federal-state comity, will have the first opportunity to pass upon

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and correct alleged violations of federal constitutional guarantees. See,e.g., Coleman v.

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Thompson, 501 U.S. 722, 731 (1991).

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Under Rose v. Lundy, 455 U.S. 509 (1982), a mixed petition presenting both exhausted

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and unexhausted claims must be dismissed without prejudice unless the petitioner dismisses

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the unexhausted claims or seeks other appropriate relief. See generally King v. Ryan, 564

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F.3d 1133 (9th Cir. 2009)(discussing other available relief).

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In the present case, petitioner did not present a federal legal theory to the state courts

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alleging that he was deprived of due process of law by an unforeseeable enlargement of a

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criminal statute through an unforeseeable and detrimental new judicial interpretation of state

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law. As discussed above, such a claim is a distinct and different claim from a claim that an

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alleged federal constitutional “rule of lenity” required the retroactive application of the

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ameliorative state sentencing statute. If petitioner intends to pursue a claim in federal court

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based upon this newly-presented and unexhausted federal legal theory, he first must fairly

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present the claim to the state courts.
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If petitioner amends the federal petition to add the claim, he therefore must show

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cause why the petition, as amended, is not subject to dismissal unless he dismisses the

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exhausted claim or seeks other appropriate relief. To expedite the matter, the Court has

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collapsed any amendment and the associated show-cause inquiry into one combined step.

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Petitioner further may wish to provide supplemental argument on the claim originally

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presented in the petition based upon Dorsey v. United States, 132 S.Ct. 2321 (2012). The

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Court thereby makes no implication that Dorsey is dispositive of the original claim presented.

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The Court simply is providing petitioner an opportunity to address the recent decision before

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the Court notes the decision in its ultimate order on the merits herein.

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IT THEREFORE IS ORDERED that petitioner shall have thirty (30) days from entry

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of this order within which to file an amended petition asserting a claim that the state supreme

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court denied him due process of law by unforeseeably enlarging the meaning of a criminal

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statute through an unforeseeable and detrimental new interpretation that was applied

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retroactively to him. If petitioner does not amend to assert such a claim, the claim will be

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wholly disregarded as a basis for any relief herein, as being a claim beyond the pleadings.

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IT FURTHER IS ORDERED that, by the same date, if petitioner so amends the

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petition, petitioner shall SHOW CAUSE in writing -- in a separate filing -- why the petition, as

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amended, is not subject to dismissal as a mixed petition unless petitioner dismisses the

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added claim or seeks other appropriate relief.

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IT FURTHER IS ORDERED that petitioner may provide supplemental argument

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directed to Dorsey v. United States, 132 S.Ct. 2321 (2012), either within an amended petition

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if one is filed or in a separately-filed supplemental memorandum if one is not.8
DATED: July 9, 2012.

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_________________________________
EDWARD C. REED
United States District Judge

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Following resolution of any apposite exhaustion inquiry, and subject to the content of an am ended
petition, the Court thereafter m ay decide the m erits potentially based solely upon the papers then on file.

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