Manley v. Warden et al

Filing 82

ORDERED that respondents' motion to dismiss (ECF No. 68 ) is GRANTED IN PART and DENIED IN PART as follows: 1. The motion to dismiss the petition as untimely is DENIED; 2. The motion to dismiss Grounds One(B) and Thre e as procedurally defaulted is GRANTED; 3. The court defers consideration of the Martinez cause and prejudice analysis as to Ground Four until merits review; 4. The motion to dismiss Ground Five as procedurally defaulted is < B> DENIED. FURTHER ORDERED that respondents shall file an answer to all remaining claims in the petition within sixty (60) days of the date of this order. FURTHER ORDERED that petitioner may file a reply within sixty (60) days of serv ice of an answer. FURTHER ORDERED that any state court record and related exhibits filed shall be filed with a separate index of exhibits as specified herein. Signed by Judge Howard D. McKibben on 8/20/2018. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11
12
13
14
15

GILES MANLEY,

)
)
Petitioner,
)
)
v.
)
)
WARDEN HIGH DESERT STATE PRISON, )
et al.
)
)
Respondents.
)
)
_________________________________ )

3:11-cv-00354-HDM-WGC
ORDER

16
This matter comes before the court on respondents’ motion to
17
dismiss petitioner’s second amended petition for writ of habeas corpus
18
pursuant to 28 U.S.C. § 2254 (ECF No. 68). Petitioner has opposed (ECF
19
No. 76), and respondents have replied (ECF No. 81).
20
Background
21
Petitioner

in

this

action

challenges

his

2003

state

court

22
conviction, pursuant to a guilty plea, on several counts, including
23
burglary, kidnaping with use of a deadly weapon, and murder, and
24
consequent sentences that include

life imprisonment without the

25
possibility of parole. (ECF No. 6; Exs. 19 & 23).1
26
Petitioner initiated this action on May 12, 2011, with the filing
27
28
1

The state court record exhibits cited in this order are located at
ECF Nos. 31-33.

1

of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

2

(See ECF No. 6). On June 16, 2011, the court screened the petition,

3

appointed counsel, and granted counsel leave to file a first amended

4

petition. (ECF No. 7). The Federal Public Defender entered a notice

5

of appearance on petitioner’s behalf on July 15, 2011. (ECF No. 9).

6

Following several extensions of time, counsel filed a first

7

amended petition on January 7, 2013 – nearly eighteen months after

8

filing a notice of appearance in this case. (ECF No. 30). Respondents

9

moved to dismiss the first amended petition as, inter alia, untimely.

10

(ECF No. 37). The court ultimately denied the motion to dismiss on

11

timeliness grounds, finding that petitioner was entitled to equitable

12

tolling. (ECF No. 58). As the court also found that the first amended

13

petition contained unexhausted claims and that there was good cause

14

for the failure to exhaust the claims in state court before filing the

15

federal petition, the court granted petitioner’s motion to stay and

16

abey so that petitioner could return to state court. This case was

17

accordingly administratively closed. (Id.)

18

On February 17, 2017, petitioner moved to reopen following the

19

Nevada Supreme Court’s issuance of remittitur on the appeal of his

20

third state habeas petition. (ECF No. 61). At the same time, he filed

21

his second amended petition, which is the operative petition in this

22

case. (ECF No. 62). Respondents move to dismiss the second amended

23

petition on the grounds that most claims are untimely and several

24

claims are procedurally defaulted. (ECF No. 68).

25

Timeliness

26

The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

27

amended the statutes controlling federal habeas corpus practice to

28

include a one-year statute of limitations on the filing of federal
2

1

habeas corpus petitions. With respect to the statute of limitations,

2

the habeas corpus statute provides:

3
4
5
6
7
8
9
10
11
12
13

(d)(1) A 1-year period of limitation shall apply
to an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of
a State court. The limitation period shall run
from the latest of–
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to
filing an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional
right asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review; or

14
15

(D) the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.

16
17
18
19

(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitations under this
subsection.

20
28 U.S.C. § 2244(d).
21
A claim in an amended petition that is filed after the expiration
22
of the one-year limitation period will be timely only if the claim
23
relates back to a timely-filed claim pursuant to Rule 15(c) of the
24
Federal Rules of Civil Procedure, on the basis that the claim arises
25
out of “the same conduct, transaction or occurrence” as the timely
26
claim. Mayle v. Felix, 545 U.S. 644 (2005). In Mayle, the Supreme
27
Court held that habeas claims in an amended petition do not arise out
28
3

1

of “the same conduct, transaction or occurrence” as prior timely

2

claims merely because the claims all challenge the same trial,

3

conviction

4

construction of the rule approved in Mayle, Rule 15(c) permits

5

relation back of habeas claims asserted in an amended petition “only

6

when the claims added by amendment arise from the same core facts as

7

the timely filed claims, and not when the new claims depend upon

8

events separate in ‘both time and type' from the originally raised

9

episodes.” 545 U.S. at 657. In this regard, the reviewing court looks

10

to “the existence of a common ‘core of operative facts' uniting the

11

original and newly asserted claims.” A claim that merely adds “a new

12

legal theory tied to the same operative facts as those initially

13

alleged” will relate back and be timely. 545 U.S. at 659 & n.5.

or

sentence.

545

U.S.

at

655-64.

Rather,

under

the

14

Respondents move to dismiss the second amended petition on the

15

grounds that it was filed after the expiration of the statute of

16

limitations and does not relate back to any timely filed petition.

17

Specifically, although the parties agree that the second amended

18

petition is substantially identical to the first amended petition,

19

respondents again argue that the first amended petition is untimely

20

and argue – for the first time – that the claims in the first amended

21

petition cannot be considered timely as they do not relate back to the

22

original pro se petition.

23

The court’s order on the respondents’ prior motion to dismiss

24

rested on an implicit holding: that equitable tolling excused the

25

untimely filing of both the original petition and the first amended

26

petition. Otherwise, the court’s granting of a stay to exhaust the

27

claims in the first amended petition, which do not appear in the

28

original petition and largely do not relate back to it, would have
4

1

been meaningless. (See ECF No. 58). Respondents never argued, at any

2

time before the stay was granted or within a reasonable period of time

3

thereafter, that even if the original petition were timely the claims

4

in the first amended petition were not. The petitioner relied on the

5

court’s order and respondents’ failure to otherwise object in staying

6

his petition and returning to state court to exhaust his claims. Under

7

these circumstances, even assuming the court were inclined to revisit

8

its earlier, implicit holding extending equitable tolling to the first

9

amended petition, the court finds that respondents have waived their

10

argument that the claims in the first amended petition are untimely

11

because they do not relate back to the original petition. As such, the

12

claims in the first amended petition are deemed timely, whether by the

13

application of equitable tolling to the first amended petition or by

14

respondents’ waiver of the relation back argument.

15

As the second amended petition is virtually identical to the

16

first amended petition and the first amended petition is, effectively,

17

timely, the claims in the second amended petition relate back to a

18

timely petition. The motion to dismiss the second amended petition as

19

untimely will therefore be denied.

20

Procedural Default

21

Respondents argue that Grounds 1(B), Three, Four and Five are

22

procedurally defaulted because they were raised for the first and only

23

time in a petition dismissed by the state courts as untimely,

24

successive and an abuse of the writ. Petitioner asserts that the

25

procedural default of all claims may be excused on the basis of actual

26

innocence or his mental limitations, the default of Ground Four may

27

be excused under Martinez v. Ryan, 566 U.S. 1 (2012), and Ground Five

28

is not procedurally defaulted.
5

1

A. Mental Impairments

2

The

Ninth

Circuit

has

not

decided

whether

there

are

any

3

situations in which mental incompetence could provide cause for a

4

procedural default, but it has held that a petitioner would not in any

5

event be able to demonstrate cause where he “on his own or with

6

assistance remain[ed] ‘able to apply for post-conviction relief to a

7

state court.’” Schneider v. McDaniel, 674 F.3d 1144, 1154 (9th Cir.

8

2012) (citing Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909

9

(9th Cir. 1986)). Further, any such exception could not apply “where

10

a mental defect had less of an adverse effect on the petitioner’s

11

ability to comply with state procedures than illiteracy would have

12

had.” Id.

13

In Hughes, the Ninth Circuit rejected as cause that petitioner

14

was illiterate and the inmate who had been helping him was released

15

before petitioner needed his assistance. Hughes, 800 F.2d at 909. In

16

Tacho v. Martinez, the Ninth Circuit held that a petitioner who was

17

“borderline mental defective” who had help from incompetent counsel

18

and jailhouse lawyers could not establish cause. Tacho, 862 F.2d 1376,

19

1381 (9th Cir. 1988).

20

Petitioner’s cause argument is foreclosed by Tacho, which held

21

that whether petitioner’s “borderline mental defective” status was

22

more or less of a restriction on petitioner’s ability to file than

23

illiteracy would have been was irrelevant because the petitioner at

24

all times had assistance – albeit from “incompetent” attorneys and

25

jailhouse lawyers. See id. If cause cannot be established where a

26

petitioner who functions in the borderline mental defective range had

27

the help of incompetent attorneys and jailhouse lawyers, it cannot be

28

established where, as here, petitioner functions in the borderline
6

1

range2 and had the help of possibly ineffective attorneys.

2

Petitioner argues that Tacho is distinguishable because Tacho was

3

literate and had the ability to monitor the assistance he was

4

receiving while petitioner here could not. However, petitioner has not

5

shown or even argued that he is illiterate. In fact, the evidence on

6

the record is that he can read, albeit at a sixth grade level. (Ex.

7

101 at 12). At most the evidence suggests that he may have had

8

limitations in monitoring the assistance he was receiving, but this

9

was not a factor in the court’s decision in Tacho and is therefore not

10

dispositive. Even if petitioner were illiterate, however, it remains

11

that petitioner had assistance.

12

Here, petitioner, who functions in the borderline range like the

13

petitioner in Tacho, had assistance for all of his state post-

14

conviction petitions, like the petitioner in Tacho, cannot establish

15

cause on the basis of his mental limitations, like the petitioner in

16

Tacho. (See Ex. 101 at 24-25). Ninth Circuit precedent thus forecloses

17

a finding of cause in this case.

18

B. Martinez

19

Petitioner argues that he can establish cause for the default of

20

Ground 4 on the basis of Martinez v. Ryan, 566 U.S. 1 (2012). In

21

Martinez, the United States Supreme Court created a narrow, equitable

22

rule that allows petitioners to, in some cases, establish cause for

23

a procedural default where their post-conviction counsel rendered

24

ineffective

25

collateral proceedings a substantial claim of ineffective assistance

26

of trial counsel. Id. at 16-17. Respondents argue that petitioner

assistance

by

failing

to

raise

in

initial-review

27
28

2
Dr. Llorente found petitioner functions
borderline range. (See Ex. 101 at 24-25).

7

categorically

in

the

1

cannot rely on Martinez because (1) petitioner’s claim of ineffective

2

assistance of post-conviction counsel is procedurally defaulted; (2)

3

petitioner

4

ineffectiveness was the cause for the untimely filing of the petition

5

the state court found procedurally barred; and (3) petitioner has not

6

and cannot show post-conviction counsel was ineffective.

has

not

shown

that

post-conviction

counsel’s

7

Respondents cite no authority for the proposition that the

8

underlying ineffective assistance of post-conviction counsel claim

9

asserted for Martinez purposes must be exhausted, much less that it

10

can be barred as procedurally defaulted.3 Moreover, the Nevada Supreme

11

Court’s finding that the petition in this case was procedurally barred

12

had no effect on petitioner’s claim of ineffective assistance of post-

13

conviction counsel because petitioner raised no such claim in his

14

petition. (See Ex. 134). Accordingly, the court is not persuaded by

15

the respondents’ argument in this regard.

16

Respondents also cite no authority for their argument that

17

petitioner must show that post-conviction counsel’s ineffectiveness

18

was the cause for the untimely filing of his third state habeas

19

petition. That argument is taking the Martinez cause argument one step

20

too far. Rather, the question is whether post-conviction counsel’s

21

ineffectiveness was the reason a claim was not raised in a timely and

22

procedurally proper petition and appeal. Under Martinez, a petitioner

23

may argue that a procedurally defaulted claim should have been raised

24

in initial review collateral proceedings and post-conviction counsel

25

was ineffective for failing to do so.

Whatever happens subsequent to

26
3

27
28

In fact, given that such a claim is generally not cognizable as an
independent claim and will only ever be able to be raised after the first
post-conviction proceedings, any such requirement would appear to be futile.

8

1

that failure is irrelevant for the purposes of this analysis.

2

As to respondents’ last arguments, whether petitioner has a

3

substantial claim of ineffective assistance of trial counsel and

4

whether post-conviction counsel was ineffective for failing to raise

5

it are questions that are intertwined with the merits of the claim

6

itself. The consideration of these questions is thus best left for a

7

full merits review. Accordingly, the court will defer the cause and

8

prejudice analysis under Martinez until merits review. Respondents

9

shall raise all relevant arguments with respect to the Martinez cause

10

and prejudice issue in their answer.

11

C. Ground Five

12

Ground Five asserts a claim that, in light of Miller v. Alabama,

13

567 U.S. 460 (2012), petitioner’s life sentence for conduct committed

14

as a juvenile violates the Eighth Amendment’s proscription against

15

cruel

16

purported default of this claim, petitioner argues that the claim is

17

not procedurally defaulted.

and

unusual

punishment.

Rather

than

argue

cause

for

the

18

The Nevada Supreme Court addressed the merits of Ground Five by

19

finding that Miller does not entitle petitioner to relief. The claim

20

is not therefore procedurally defaulted.

21

D.

Actual Innocence

22

As to Grounds 1(B) and Three, as well as Ground Four in the event

23

Martinez

does

not

24

demonstrate actual innocence to excuse his defaults. Specifically,

25

petitioner asserts that because he was sentenced to a term of life

26

without the possibility of parole for acts committed as a juvenile and

27

because

28

sentences,

Supreme
he

is

supply

Court

cause,

precedent

actually

petitioner

renders

innocent
9

of

his

argues

that

he

unconstitutional
life

without

can

such
parole

1

sentence.

2

Putting aside the question of whether one can be innocent of a

3

noncapital sentence,4 it is clear that no law, at this juncture at

4

least, necessarily renders petitioner’s sentence unconstitutional. In

5

Graham v. Florida, the Supreme Court held that a sentence of life

6

without parole imposed on a juvenile for a nonhomicide offense is

7

cruel and unusual punishment in violation of the Eighth Amendment. 560

8

U.S. 48, 82 (2010). Later, the Supreme Court concluded in Miller v.

9

Alabama that “mandatory life without parole for those under the age

10

of 18 at the time of their crimes violates the Eighth Amendment’s

11

prohibition on ‘cruel and unusual punishments.’” 567 U.S. 460, 465

12

(2012).

13

In both cases, the Supreme Court emphasized that the Constitution

14

requires individualized sentencing for defendants facing the most

15

serious penalties. In Miller, the Court noted the evolution of a

16

foundational principle that “imposition of a State’s most severe

17

penalties on juvenile offenders cannot proceed as though they were not

18

children.” Id. at 474. It further held that “Graham’s reasoning

19

implicates any life-without-parole sentence imposed on a juvenile,

20

even as its categorical bar relates only to nonhomicide offenses” and

21

that “appropriate occasions for sentencing juveniles to this harshest

22

possible penalty will be uncommon.” Id. at 473 & 479.

23

While Graham and Miller show how federal constitutional law

24

continues to evolve in relation to juvenile offenders, they do not

25
4

26
27
28

Respondents argue that “actual innocence” cannot apply to a
noncapital sentence. However, at most the issue is undecided and there is
certainly a reasonable question as to whether the exception might apply to
a sentence of life without the possibility of parole imposed on a juvenile
offender, as the Supreme Court has likened such sentences to the death
penalty. See Miller, 567 U.S. at 475.

10

1

hold categorically that life sentences without the possibility of

2

parole imposed on juveniles are unconstitutional.

3

Petitioner committed two murders and thus his sentence is not

4

prohibited by Graham. Nor does petitioner’s sentence violate Miller,

5

as he was not sentenced pursuant to a sentencing scheme that mandated

6

life without the possibility of parole. See Nev. Rev. Stat. §

7

200.030(4)(b). Although petitioner attempts to come within Miller’s

8

purview by arguing that because he agreed to a sentence of life

9

without

the

possibility

of

parole

pursuant

to

a

binding

plea

10

agreement, his sentence was “mandatory,” the court is not persuaded.

11

Petitioner’s agreement to a sentence is not the same as a sentence

12

imposed pursuant to a mandatory sentencing scheme.5 Furthermore, the

13

petitioner received an individualized sentencing hearing. In fact,

14

before reciting the facts of petitioner’s crime and petitioner’s own

15

history – criminal and otherwise – the trial court stated: “[I]f the

16

Court ever seen [sic] a crime that warranted the death sentence, this

17

would be such a crime.” (Ex. 21 (Tr. 18)).

18

As

there

is

no

Supreme

Court

case

categorically

barring

19

petitioner’s sentence to life in prison without the possibility of

20

parole for crimes committed as a juvenile, “actual innocence” cannot

21

excuse the default of Grounds 1(B), Three and Four.

22

Conclusion

23

In accordance with the foregoing, IT IS THEREFORE ORDERED that

24

respondents’ motion to dismiss is GRANTED IN PART and DENIED IN PART

25
26
27
28

5

Whether Martinez could be extended to a situation where the guilty
plea was conditional, or binding, on the court that sentenced petitioner and
thus was effectively mandatory is an issue that might justify the grant of
a certificate of appealability in this case, if and when it is necessary for
the court to reach that issue.

11

1

as follows:

2

1.

The motion to dismiss the petition as untimely is DENIED;

3

2.

The

3.

8

dismiss

Grounds

One(B)

and

Three

as

The court defers consideration of the Martinez cause and
prejudice analysis as to Ground Four until merits review;

6
7

to

procedurally defaulted is GRANTED;

4
5

motion

4.

The motion to dismiss Ground Five as procedurally defaulted
is DENIED.

9

IT IS FURTHER ORDERED that respondents file an answer to all

10

remaining claims in the petition within sixty (60) days of the date

11

of this order. The answer must include substantive arguments on the

12

merits as to each remaining ground in the petition, as well as

13

respondents’ procedural default argument with respect to Ground Four.

14

Respondents must comply with the requirements of Rule 5 of the Rules

15

Governing Section 2254 Cases in the United States District Courts and

16

shall specifically cite to and address the applicable state court

17

written decision and state court record materials, if any, regarding

18

each claim within the response as to that claim.

19
20

IT IS FURTHER ORDERED that petitioner may file a reply within
sixty (60) days of service of an answer.

21

IT IS FURTHER ORDERED that any state court record and related

22

exhibits filed herein by either petitioner or respondents shall be

23

filed with a separate index of exhibits identifying the exhibits by

24

number. The CM/ECF attachments that are filed further shall be

25

identified by the number or numbers of the exhibits in the attachment.

26

If the exhibits filed will span more than one ECF Number in the

27

record, the first document under each successive ECF Number shall be

28

either another copy of the index, a volume cover page, or some other
12

1

document serving as a filler, so that each exhibit under the ECF

2

Number thereafter will be listed under an attachment number (i.e.,

3

Attachment 1, 2, etc.).

4

IT IS SO ORDERED.

5

DATED: This 20th day of August, 2018.

6
7
8

_________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13