Green v. McDaniel et al

Filing 71

ORDER granting Respondents' ECF No. 55 Motion to Dismiss, dismissing Grounds 5(b) and 5(d) of ECF No. 8 Petition; giving Respondents 30 days to file answer to surviving grounds of Petition. Petitioner to reply within 30 days thereafter. Signed by Judge Miranda M. Du on 5/18/2017. (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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***

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JAMES HENRY GREEN,
Petitioner,

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Case No. 3:11-cv-00230-MMD-VPC
ORDER

v.
RENEE BAKER, et al.,

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Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28

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U.S.C. § 2254 by a Nevada state prisoner. Before the Court is respondents’ motion to

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dismiss Grounds 5(b) and 5(d) of the petition. (ECF No. 55.)

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I.

PROCEDURAL HISTORY

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On December 14, 2007, the State of Nevada filed an information in the Eighth

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Judicial District Court for the State of the Nevada charging petitioner with one count of

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attempted murder with use of a deadly weapon, one count of battery with use of a deadly

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weapon resulting in substantial bodily harm, and one count of mayhem with use of a

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deadly weapon. (Exh. 1.)1 After a jury trial, the jury returned a verdict finding petitioner

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guilty of one count of attempted murder with use of a deadly weapon and one count of

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mayhem with use of a deadly weapon. (Exh. 6.)

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The state district court sentenced petitioner to 60 to 240 months for the attempted

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murder charge, with an equal and consecutive term for use of a deadly weapon, with the

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1The

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exhibits referenced in this order are found in the Court’s record at ECF Nos.

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sentence to run consecutive to criminal case C238876. (Exh. 8.) The state district court

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dismissed the mayhem charge as redundant and issued its judgment of conviction on

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June 13, 2008. Petitioner appealed. (Exh. 9.) On May 13, 2009, the Nevada Supreme

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Court affirmed petitioner’s convictions. (Exh. 12.)

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On May 3, 2010, petitioner filed a post-conviction petition in the state district court.

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(Exh. 13.) The state district court denied post-conviction relief on July 24, 2010. (Exh. 14.)

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Petitioner appealed the denial to the Nevada Supreme Court. (Exh. 15.) On January 13,

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2011, the Nevada Supreme Court affirmed the state district court’s decision. (ECF No. 8-

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2 at 1-6.)

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Petitioner filed his federal petition for writ of habeas corpus in this Court on March

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26, 2011. (ECF No. 1.) On August 24, 2011, respondents moved to dismiss several

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grounds of the petition. (ECF No. 16.) On March 14, 2012, this Court issued an order

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granting in part, and denying in part, respondents’ motion to dismiss. (ECF No. 28.) The

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Court ruled as follows: Grounds 5(b) and 5(d) are unexhausted; Grounds 1(a), 1(b), 2(a),

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3(d), 5(e) and 6(b)(1-5) are exhausted; Grounds 1(c) and 5(a) are dismissed as

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procedurally defaulted; Grounds 1(a), 1(b), 2(a), 2(c), 4(c) and 5(e) are dismissed for

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failure to state a claim; Grounds 2(b) and 2(d) state cognizable claims for habeas relief.

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The Court gave petitioner options for addressing his unexhausted claims. Petitioner filed

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a motion for a stay and abeyance while he exhausted Grounds 5(b) and 5(d) in state

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court. (ECF No. 39.) On June 6, 2014, this Court granted petitioner’s motion for a stay

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and abeyance. (ECF No. 47.)

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On his return to state court, petitioner presented Grounds 5(b) and 5(d) in his

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petition filed on August 1, 2014. (Exh. 16.) The state district court denied the entire petition

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by order filed December 15, 2014. (Exh. 17.) On April 15, 2015, the Nevada Court of

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Appeals affirmed the state district court’s denial of the petition. (Exh. 18.)

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Upon his return from state court, petitioner filed a motion to reopen this case on

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June 15, 2015. (ECF No. 48.) On March 9, 2016, the Court granted the motion to reopen

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this case and directed respondents to answer the remaining grounds of the petition. (ECF
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No. 50.) On July 7, 2016, respondents filed the instant motion to dismiss Grounds 5(b)

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and 5(d) as procedurally barred. (ECF No. 55.) Petitioner filed an opposition. (ECF No.

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66.) Respondents filed a reply brief. (ECF No. 69.)

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II.

DISCUSSION

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A.

Procedural Default Principles

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In Coleman v. Thompson, 501 U.S. 722 (1991), the United States Supreme Court

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held that a state prisoner’s failure to comply with the state’s procedural requirements in

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presenting his claims is barred from obtaining a writ of habeas corpus in federal court by

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the adequate and independent state ground doctrine. Coleman, 501 U.S. at 731-32 (“Just

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as in those cases in which a state prisoner fails to exhaust state remedies, a habeas

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petitioner who has failed to meet the State’s procedural requirements for presenting his

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federal claims has deprived the state courts of an opportunity to address those claims in

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the first instance.”). Where such a procedural default constitutes an adequate and

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independent state ground for the denial of habeas corpus relief, the default may be

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excused only “if a constitutional violation has probably resulted in the conviction of one

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who is actually innocent,” or if the prisoner demonstrates cause for the default and

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prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

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A state procedural bar is “adequate” if it is “clear, consistently applied, and well-

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established at the time of the petitioner’s purported default.” Calderon v. United States

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District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Wells v. Maass, 28 F.3d

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1005, 1010 (9th Cir. 1994)); see also King v. Lamarque, 464 F.3d 963, 966-67 (9th Cir.

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2006). A state procedural bar is “independent” if the state court “explicitly invokes the

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procedural rule as a separate basis for its decision.” Vang v. Nevada, 329 F.3d 1069,

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1074 (9th Cir. 2003). A state court’s decision is not “independent” if the application of the

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state’s default rule depends on the consideration of federal law. Park v. California, 202

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F.3d 1146, 1152 (9th Cir. 2000); see also Coleman, 501 U.S. at 735 (there is no

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independent state ground for a state court’s application of procedural bar when the court’s

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reasoning rests primarily on federal law or is interwoven with federal law).
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B.

Analysis Regarding Independent and Adequate State Grounds

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In Ground 5(b), petitioner claims that his right to due process was violated when

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the prosecution suppressed evidence of the extensive criminal history of victim Kevin

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Tippens, including arrangements provided to him in exchange for his testimony. In

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Ground 5(d), petitioner claims that his right to due process was violated when the state

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district court failed to make factual findings on certain issues and arrived at conclusions

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that were not supported by the record. (ECF No. 8 at 11.) On his return to state court,

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petitioner presented these claims in his petition filed on August 1, 2014. (Exh. 16.) The

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state district court denied the entire petition on December 15, 2014. (Exh. 17.) On April

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15, 2015, the Nevada Court of Appeals affirmed the state district court’s denial of the

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petition. (Exh. 18.) The Court of Appeals ruled that the petition was untimely pursuant to

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NRS 34.726(1). (Id. at 1-2.) The petition was also ruled to be successive and an abuse

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of the writ pursuant to NRS § 34.810. (Id.).

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The Nevada Court of Appeals’ application of the timeliness rule in NRS § 34.726(1)

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was an independent and adequate state law ground for procedural default. See Moran v.

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McDaniel, 80 F.3d 1261, 1268-70 (9th Cir. 1996); see also Valerio v. Crawford, 306 F.3d

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742, 778 (9th Cir. 2002). The Court’s application of the successive petition rule of NRS §

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34.810 constituted an independent and adequate state ground for procedural default. See

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Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003); Bargas v. Burns, 179 F.3d 1207,

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1210-12 (9th Cir. 1999). The denial of the petition clearly and expressly rested on the state

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procedural bars invoked by the Court of Appeals. Because the claims in Ground 5(b) and

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5(d) of the federal habeas petition were procedurally defaulted on independent and

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adequate state law grounds, these grounds of the petition must be dismissed, absent

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petitioner’s showing of cause and prejudice.

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C.

Cause and Prejudice

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This Court has found that Grounds 5(b) and 5(d) of the federal petition were

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procedurally defaulted on independent and adequate state law grounds. “Cause” to

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excuse a procedural default exists if a petitioner can demonstrate that some objective
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factor external to the defense impeded the petitioner’s efforts to comply with the state

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procedural rule. Coleman v. Thompson, 501 U.S. at 755; Murray v. Carrier, 477 U.S. at

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488; Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). In his opposition, petitioner

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repeats the underlying claims made in Grounds 5(b) and 5(d). (ECF No. 66). As to Ground

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5(b), petitioner argues that he has good cause to overcome the procedural bars based

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on the fact that the State failed to disclose promises that were made to State’s witness

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Kevin Tippens. Petitioner fails to demonstrate how the alleged failure to disclose such

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promises impeded his ability to file a timely claim. Petitioner also asserts that the state

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district court failed to make findings on certain issues, and this excuses his procedural

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default. Petitioner does not identify which issues the state court failed to address, and he

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fails to show how or why the state district court’s failure to address issues impeded his

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ability to file a timely claim. Petitioner has failed to demonstrate that some objective factor

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external to the defense impeded his efforts to comply with the state procedural rules. See

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Coleman v. Thompson, 501 U.S. at 755.

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This Court finds that the issues raised in Grounds 5(b) and 5(d) were procedurally

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defaulted in state court, and petitioner has failed to show cause and prejudice to excuse

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the procedural default. As such, Grounds 5(b) and 5(d) are barred from review by this

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Court and will be dismissed with prejudice.

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III.

CONCLUSION

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It is therefore ordered that respondents’ motion to dismiss (ECF No. 55) is granted.

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Grounds 5(b) and 5(d) of the petition are dismissed with prejudice as procedurally barred.

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It is further ordered that respondents will file and serve an answer to the surviving

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grounds of the petition within thirty (30) days from the entry of this order. The answer

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must include substantive arguments on the merits as to each surviving ground of the

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petition. No further motions to dismiss will be entertained.

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It is further ordered that petitioner must file and serve a reply to the answer, within

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thirty (30) days after being served with the answer.

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DATED THIS 18th day of May 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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