Snure v. Warden et al

Filing 34

ORDER granting 29 Motion to Dismiss. Grounds 1, 3 and 5 are dismissed. Answer to remaining claim due within 45 days. Reply due 45 days from date on which answer is served. Signed by Judge Miranda M. Du on 6/3/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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THEODORE C. SNURE,

Case No. 3:11-cv-00344-MMD-WGC
Petitioner,

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v.

ORDER

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WARDEN, et al.,
Respondents.

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This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by

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Theodore C. Snure, a Nevada prisoner. On February 24, 2015, respondents filed a

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motion to dismiss certain claims in Snure’s petition, arguing that the claims are

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procedurally defaulted. (Dkt. no. 29.) Snure filed an opposition to the motion (dkt. no.

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32), in response to which respondents filed a reply (dkt. no. 33). Having considered the

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motion, the Court decides as follows.

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I.

PROCEDURAL BACKGROUND1

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On April 5, 2006, Snure was convicted of sexual assault on a child, after entering

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a guilty plea in the Second Judicial District Court in Washoe County, Nevada. The court

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sentenced Snure to life in the Nevada State Prison with the possibility of parole after 20

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years.

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Snure filed a direct appeal, but voluntarily dismissed it on October 16, 2006.

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Except where indicated, this procedural background is derived from the exhibits
provided by the respondents at docket nos. 7, 8 and 30.

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Prior to that dismissal, Snure filed, on September 13, 2006, a proper person

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petition for writ of habeas corpus in the state district court. After appointment of counsel,

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Snure filed a supplemental petition on December 21, 2006.

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On March 1, 2007, the state district court denied some of the grounds in Snure’s

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petition and granted an evidentiary hearing with respect to the remaining grounds. After

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an evidentiary hearing, the court denied the remaining grounds. Snure appealed. On

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September 10, 2010, the Nevada Supreme Court affirmed the state district court’s

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denial of Snure’s petition.

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On May 13, 2011, this Court received Snure’s federal petition for a writ of habeas

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corpus containing nine claims. (Dkt. no. 4.) Pursuant to respondents’ initial motion to

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dismiss (dkt. no. 6), this Court dismissed Grounds 2, 4, 6, 8 and 9 with prejudice

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because each of those claims failed to state a cognizable claim for federal habeas relief.

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(Dkt. no. 18.) The Court further concluded that Grounds 1, 3 and 5 were unexhausted.

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(Id.)

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On March 16, 2012, this Court granted Snure a stay to allow him to exhaust state

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court remedies for his unexhausted claims. (Dkt. no. 22.) On May 4, 2012, Snure filed a

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second petition for a writ of habeas corpus in state district court raising his

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unexhausted claims. The petition was dismissed as procedurally defaulted. Snure

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appealed. The Nevada Supreme Court affirmed the lower court’s decision.

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On January 20, 2015, this Court granted Snure’s motion to reopen his federal

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habeas proceedings. (Dkt. no. 28.) On February 24, 2015, respondents filed the motion

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to dismiss that is now before the Court for decision.

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II.

PROCEDURAL DEFAULT DOCTRINE

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

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Court held that a state prisoner's failure to comply with the state's procedural

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requirements in presenting his claims to the state court is barred from obtaining a writ of

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habeas corpus in federal court if the procedural bar imposed by the state court was

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independent of the federal question and adequate to support the judgment. Coleman,
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501 U.S. at 729. 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

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

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

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

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1069, 1074 (9th Cir. 2003). A state court's decision is not “independent” if the application

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

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202 F.3d 1146, 1152 (9th Cir. 2000); see also Coleman, 501 U.S. at 735 (holding that

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there is no independent state ground for a state court's application of procedural bar

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when the court's reasoning rests primarily on federal law or is interwoven with federal

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law).

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III.

DISCUSSION

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Respondents argue that Grounds 1 3, and 5 are procedurally defaulted. In

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affirming the state district court’s dismissal of Snure’s second application for state post-

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conviction relief, the Nevada Supreme Court cited to the timeliness bar under NRS §

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34.726(1) and the successive petition bar under NRS §34.810(2). (Dkt. no. 30-13 at 2-

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3.) The state supreme court further determined that Snure could not show good cause

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and actual prejudice for the purposes of excusing the procedural defaults. (Id. at 3-4.)

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The Ninth Circuit has held that the Nevada Supreme Court's application of the

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timeliness rule in NRS § 34.726(1) is an independent and adequate state law ground for

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procedural default. Moran v. McDaniel, 80 F.3d 1261, 1268–70 (9th Cir. 1996); see

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Valerio v. Crawford, 306 F.3d 742, 778 (9th Cir. 2002). The Ninth Circuit also has held
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that, at least in non-capital cases, application of the abuse of the writ rule of NRS §

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34.810(2) is an independent and adequate state ground for procedural default. Vang,

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329 F.3d at 1074; Bargas v. Burns, 179 F.3d 1207, 1210–12 (9th Cir. 1999).

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In this case, this Court finds that the Nevada Supreme Court's application of the

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procedural bars of NRS § 34.726(1) and NRS § 34.810(2) were independent and

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adequate grounds for the state court's dismissal of petitioner's claims. In opposing

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respondents’ motion to dismiss, Snure offers no basis upon which to find cause and

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prejudice to excuse the procedural bar, or that failure to consider any of the defaulted

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claims will result in a fundamental miscarriage of justice. Thus, Grounds 1, 3 and 5 of

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the petition are procedurally barred from federal review and must be dismissed with

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prejudice.
It is therefore ordered that respondents’ motion to dismiss (dkt. no. 29) is

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granted. Grounds 1, 3 and 5 are dismissed for the reasons set forth above.

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It is further ordered that the respondents shall have forty-five (45) days from the

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date on which this order is entered to answer the remaining claim in the petition. To the

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extent they have not done so already, respondents shall comply with Rule 5 of the

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Rules Governing Section 2254 Cases in the United States District Courts. Petitioner

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shall have forty-five (45) days from the date on which the answer is served to file a

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reply.

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DATED THIS 3rd day of June 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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