Smith v. LeGrand et al

Filing 50

ORDERED that respondents' motion to dismiss (ECF No. 15 ) is granted in part. Ground 6(a) is dismissed as untimely. Ground 7, ground 8, and the part of Ground 6(e) described herein are unexhausted. Petitioner will have until 9/6/2017 to file a motion for dismissal without prejudice of the entire petition, for partial dismissal of Ground 7, Ground 8, and the part of Ground 6(e) described herein, or for other appropriate relief. Within 10 days of filing such motion, petitioner must file a signed declaration as specified herein. Signed by Judge Miranda M. Du on 8/7/2017. (Copies have been distributed pursuant to the NEF - DRM)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 KEITH G. SMITH, 10 Petitioner, ORDER v. 11 12 Case No. 3:14-cv-00029-MMD-VPC ROBERT LeGRAND, et al., Respondents. 13 14 15 I. SUMMARY 16 Before the Court is the amended petition for writ of habeas corpus. (ECF No. 15.) 17 Respondents move to dismiss (“Motion”). (ECF No. 29.) The Court has reviewed 18 petitioner’s opposition (ECF No. 44) and respondents’ reply (ECF No. 49). The Court 19 grants the Motion in part because some grounds are not timely and some grounds are 20 not exhausted. 21 II. DISCUSSION 22 A. Timeliness 23 Respondents argue that parts of Ground 6 of the amended petition are untimely. 24 Petitioner filed his initial, proper-person petition on time. He filed his counseled amended 25 petition after expiration of the one-year period of limitation of 28 U.S.C. § 2244(d). The 26 grounds of the amended petition are timely if they relate back to the initial petition. Under 27 Rule 15(c), a claim in an amended petition relates back to a claim in a timely-filed petition 28 if the claim in the amended petition “arose out of the conduct, transaction, or occurrence 1 set out” in the previous petition. Fed. R. Civ. P. 15(c)(1)(B). As the Supreme Court 2 explained in Mayle v. Felix, 545 U.S. 644 (2005), Rule 15(c) permits relation back only 3 when new claims “arise from the same core facts as the timely filed claims, and not when 4 the new claims depend upon events separate in both time and type from the originally 5 raised episodes.” Mayle, 545 U.S. at 657 (internal quotation marks omitted). The 6 question, then, is whether Ground 6 of Irive’s amended petition shares “a common core 7 of operative facts” with a timely-filed claim in his original petition. 1. 8 Ground 6(a) 9 Ground 6(a) is a claim that trial counsel provided ineffective assistance because 10 trial counsel failed to make the recordings of petitioner’s statements to police, and the 11 transcripts of those recordings, part of the record on appeal. Petitioner argues that ground 12 6(a) relates back to grounds 2 and 6 of the original petition. The Court disagrees. Ground 13 2 of the original petition is a claim that appellate counsel failed to make the recordings 14 and the transcripts part of the record. (ECF No. 1-1 at 35-37.)1 This ground differs with 15 Ground 6(a) in the key operative fact of which counsel failed to act. Ground 6 of the 16 original petition is a claim that the trial court erred in refusing to play the recordings for 17 the jury. This ground differs with Ground 6(a) in the key operative facts of what the error 18 was, who committed the error, and when the error occurred. Ground 6(a) does not relate 19 back to the initial petition. See Schneider v. McDaniel, 674 F.3d 1144, 1150-1152 (9th 20 Cir. 2012). 2. 21 Ground 6(b) 22 Ground 6(b) is a claim that trial counsel [1] failed to have petitioner testify in his 23 own defense, [2] failed to consult with petitioner regarding his right to testify, and [3] failed 24 to secure a waiver of that right. Petitioner did not break Ground 6(b) into three separate 25 parts. Respondents have done that, with the numbers that the Court has placed in 26 1The 27 28 initial, proper-person petition actually is filed at ECF No. 4. However, the ECF docket numbers and page numbers of that document are unreadable. The court refers to the copy of the petition that petitioner submitted with his application to proceed in forma pauperis, which is at ECF No. 1. 2 1 brackets, and petitioner has objected to respondents re-writing his petition. Respondents 2 then argue that the claim that trial counsel failed to consult with petitioner about his right 3 to testify does not relate back to any claim in the initial petition. The Court disagrees. 4 Ground 15 of the initial petition is a claim that trial counsel failed to have petitioner testify. 5 (ECF No. 1-2 at 33-37.) It is true that petitioner does not allege in that ground that counsel 6 failed to consult with petitioner about his right to testify, but the Court does not see that 7 as an operative fact. Consultation, or the lack of consultation, is inherent in any ineffective- 8 assistance claim regarding a person’s right to testify. Ground 6(b) relates back to the 9 initial petition. 10 3. Ground 6(d) 11 Ground 6(c) is a claim that trial counsel failed to seek testing of a blood sample of 12 the victim. Respondents argue that although petitioner did raise in the initial petition a 13 claim that trial counsel failed to seek testing of the blood sample, the reasons why 14 petitioner suffered prejudice have changed. In ground 18 of the initial petition, petitioner 15 argues, “If the alleged victim was more than double the legal limit to drive a car based 16 upon her blood alcohol content combined with her abuse of methamphetamine, the jury 17 would have recognized her impaired perceptions.” (ECF No. 1-3 at 11.) In Ground 6(c) of 18 the amended petition, petitioner argues, “Methamphetamine is a stimulant, and would 19 have counteracted the effects of alcohol.” (ECF No. 15 at 30.) The operative facts in both 20 grounds are the same—counsel failed to seek testing of the blood sample of the victim. 21 Relation back is proper even if the consequences argued from those facts are different. 22 See Felix, 545 U.S. at 664 n.7. Ground 6(c) relates back to the initial petition. 23 24 25 26 27 4. Ground 6(d) Ground 6(d) is a claim that counsel failed to obtain the victim’s criminal record. In ground 1 of the initial petition, petitioner alleged: It was also determined, and never investigated, that the victim had a criminal history for drug convictions, and more importantly perjury. These facts were never investigated by Mr. Avants [trial counsel]. 28 3 1 (ECF No. 1-1 at 34.) Ground 6(d) might be more specific than what petitioner alleged in 2 the initial petition, but it still shares the common operative fact that trial counsel did not 3 investigate the victim’s criminal history. Ground 6(d) relates back to the initial petition. 4 B. Failure to State a Claim 5 Respondents argue that petitioner has failed to cite Supreme Court precedent in 6 the amended petition. The Court has rejected this argument once and sees no need to 7 revisit it. (See ECF No. 28.) 8 C. Lack of Cognizable Claim in Ground 8 9 Respondents argue that Ground 8, a claim of cumulative error, is not addressable 10 in federal habeas corpus because the Supreme Court of the United States has not clearly 11 established that such a claim exists. Respondents are wrong. The court of appeals has 12 held that the Supreme Court has clearly established that a cumulative-error claim exists, 13 and this Court is bound by that holding. Parle v. Runnels, 505 F.3d 922, 929 (9th Cir. 14 2007). 15 D. Exhaustion 16 Respondents argue that petitioner has not exhausted some of his grounds for 17 relief. Before a federal court may consider a petition for a writ of habeas corpus, the 18 petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To 19 exhaust a ground for relief, a petitioner must fairly present that ground to the state’s 20 highest court, describing the operative facts and legal theory, and give that court the 21 opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 22 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982). 23 “[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available 24 state remedies only if he characterized the claims he raised in state proceedings 25 specifically as federal claims. In short, the petitioner must have either referenced specific 26 provisions of the federal constitution or statutes or cited to federal case law.” Lyons v. 27 Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 28 904 (9th Cir. 2001). Citation to state case law that applies federal constitutional principles 4 1 will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). “The 2 mere similarity between a claim of state and federal error is insufficient to establish 3 exhaustion. Moreover, general appeals to broad constitutional principles, such as due 4 process, equal protection, and the right to a fair trial, are insufficient to establish 5 exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). 6 1. Ground 4 7 Ground 4 is a claim that the prosecution committed misconduct because it did not 8 test a blood sample of the victim for methamphetamine and then it argued facts not in 9 evidence to explain away the possible presence of methamphetamine in the victim’s urine 10 sample. Petitioner did cite provisions of the Constitution in the corresponding claim in 11 state court. (See Exh. 29 at 32-34 (ECF No. 16-29 at 43-45).) Respondents argue that 12 the claim is not exhausted because petitioner merely attached federal constitutional 13 citations to what otherwise is a claim of a violation of state law. What respondents 14 describe is a claim that might lack merit in this Court because no violation of the 15 Constitution could have occurred. See 28 U.S.C. § 2254(a). However, it does not mean 16 that petitioner failed to exhaust the claim in state court. Petitioner did all that the law 17 required to exhaust Ground 4 in the state courts. 18 2. Ground 6(a) 19 Ground 6(a) is a claim that trial counsel failed to make the recordings of petitioner’s 20 statements to the police, and the transcripts of those recordings, part of the record for 21 appeal. The Court already has determined that Ground 6(a) does not relate back to the 22 timely filed initial petition. In the alternative, the Court agrees with respondents that 23 petitioner never presented this claim to the Nevada Supreme Court. The Court is not 24 persuaded that petitioner exhausted this ground by claims in state court that trial counsel 25 failed to request an independent review of the recordings and that appellate counsel failed 26 to make the recordings and transcripts part of the record on appeal. Petitioner is trying to 27 merge together two claims that have distinct facts into one claim that the Nevada 28 Supreme Court never had the opportunity to address. Ground 6(a) is unexhausted. 5 3. 1 Ground 6(b) 2 Ground 6(b) contains an allegation that trial counsel failed to consult with petitioner 3 about his right to testify and an allegation that trial counsel failed to secure a waiver of 4 petitioner’s right to testify. Petitioner did not allege these facts in his state-court post- 5 conviction proceedings. However, these additional facts do not fundamentally alter the 6 claim that the Nevada Supreme Court considered. See Vasquez v. Hillery, 474 U.S. 254, 7 260 (1986). Ground 6(b) is exhausted. 4. 8 Ground 6(e) 9 Ground 6(e) is a claim that trial counsel failed to object to three statements by the 10 prosecutor during rebuttal argument. The propriety of the statements themselves is the 11 issue of Ground 3. The second statement is: 12 13 Mr. Avants [defense counsel] talked a little bit about the defendant being consistent in what he said to Detective Hendrix. Was he in the same courtroom we were? 14 (ECF No. 15 at 23 (citing Exh. 20 at 178).) Petitioner did argue on direct appeal that the 15 statement was improper. (Exh. 29 at 39-41 (ECF No. 16-29, at 50-52).) However, in the 16 state post-conviction proceedings petitioner never argued that trial counsel failed to object 17 to that particular statement. Petitioner did argue in the post-conviction proceedings that 18 trial counsel failed to object to other statements, but each statement is the basis of its 19 own, fundamentally distinct claim. (See Exh. 48 at 23-25 (ECF No. 17-17 at 31-33).) 20 Ground 6(e) is not exhausted with respect to the statement quoted above. 5. 21 Ground 6(f) 22 Ground 6(f)2 is a claim that counsel failed to object to the introduction of evidence 23 that petitioner possessed sex toys. Petitioner raised this as issue V on the appeal from 24 the second denial of his state post-conviction habeas corpus petition. (See Exh. 67 at 20- 25 23 (ECF No. 17-36 at 26-29).) Ground 6(f) is exhausted. 26 /// 27 28 2Respondents refer to this as Ground 9. 6 1 6. Ground 7 2 Ground 7 is a claim that appellate counsel failed to make the recordings and 3 transcripts of petitioner’s statements to police part of the record on appeal. Petitioner also 4 alleges that counsel failed to present all the factual and legal arguments currently 5 contained in Ground 1 to the Nevada Supreme Court on direct appeal, but he does not 6 specify which arguments were not presented. The closest that petitioner came to 7 presenting this claim to the Nevada Supreme Court was, in full: 8 10 2. Appellate counsel was ineffective on direct appeal for failing to raise viable critical issues on direct appeal, in violation of Petitioner’s constitutional rights under the fifth, sixth, and fourteenth amendments of the U.S.C.A., to due process, effective assistance of counsel, and equal protection of the law. 11 (Exh. 67 at 23 (ECF No. 17-36 at 29).) This was part of an attempt by post-conviction 12 appellate counsel to present claims that petitioner raised in his proper-person post- 13 conviction habeas corpus petition. The Nevada Supreme Court rejected the attempt: 9 14 15 16 17 18 19 20 Sixth, appellant argues that the district court erred in denying additional claims raised in the proper person petition. Appellant fails to provide any cogent argument as to how or why the district court erred in denying these claims and merely refers to the proper person petition without discussing any of the issues raised therein. “It is appellant’s responsibility to present relevant authority and cogent argument; issues not so presented need not be addressed by this court.” Maresca v. State, 103 Nev. 669, 673, 743 P.2d 3, 6 (1987). Moreover, appellant may not incorporate by reference arguments made in documents filed before the district court. See NRAP 28(e)(2). Thus, we do not address these claims. (Exh. 70 at 5-6 (ECF No. 17-39 at 6-7).) 21 Ground 7 is not exhausted for two reasons. First, petitioner presented no facts to 22 the Nevada Supreme Court, and thus the facts that he alleges in Ground 7 fundamentally 23 alter the claim. Second, petitioner used an incorrect method to try to present his claims 24 of ineffective assistance of appellate counsel to the Nevada Supreme Court. “Submitting 25 a new claim to the state’s highest court in a procedural context in which its merits will not 26 be considered absent special circumstances does not constitute fair presentation.” 27 Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 28 346, 351 (1989)). 7 1 Respondents also argue that Ground 7 is not exhausted to the extent that it 2 incorporates the claims in Grounds 2 through 5 as issues that appellate counsel should 3 have raised on direct appeal. (ECF No. 29 at 18.) Petitioner made such a statement in 4 his opposition to the motion for a more definite statement. (ECF No. 25 at 7.) To the extent 5 that Ground 7 is a claim that appellate counsel should have raised on direct appeal the 6 issues currently contained in Grounds 2 through 5, Ground 7 is not exhausted for the 7 reasons in the preceding paragraph. Moreover, nothing in the body of Ground 7 itself 8 indicates that it tries to incorporate Grounds 2 through 5. The text of Ground 7 is based 9 solely upon the trial court’s refusal to play the recordings of petitioner’s statements and 10 the lack of those recordings and transcripts in the record on appeal. Petitioner cannot 11 expand the scope of Ground 7 through an opposition to a motion. 12 7. Ground 8 13 Ground 8 is a claim of cumulative error. On direct appeal, petitioner presented a 14 claim of cumulative error based upon the prosecution’s improper statements and the trial 15 court’s refusal to play the recordings of petitioner’s statements. (Exh. 29 at 41-44 (ECF 16 No. 16-29 at 50-55).) In the appeal from the first denial of his post-conviction petition, 17 petitioner presented a claim of cumulative error based upon his claims of ineffective 18 assistance of counsel and claim that the court failed to ensure that petitioner waived his 19 right to testify. (Exh. 48 at 37-38 (ECF No. 17-17 at 45-46).) In the appeal from the second 20 denial of his post-conviction petition, petitioner presented a claim of cumulative error 21 based upon his claims of ineffective assistance of counsel. (Exh. 67 at 24 (ECF No. 17- 22 36 at 30).) However, the Nevada Supreme Court never has had a single opportunity to 23 consider the cumulative effect of all the errors that petitioner now alleges. Of course, this 24 includes the individual claims that petitioner never did present to the Nevada Supreme 25 Court. For example, a cumulative-error claim that included (1) the trial court’s refusal to 26 play the recordings of petitioner’s statements, petitioner’s lack of testimony because (2) 27 counsel failed to ensure that he would testify and (3) the trial court failed to determine 28 whether petitioner had waived his right to testify, and the failure of (4) trial counsel and 8 1 (5) appellate counsel to put the recordings and transcripts of petitioner’s statements into 2 the record might be a worthwhile claim. However, the Nevada Supreme Court had the 3 opportunity to consider issues 1 through 3 only in separate proceedings and issues 4 and 4 5 not at all. Under these circumstances, Ground 8 is not exhausted. The Court also will 5 not consider Ground 8 as separate claims of cumulative error that mirror what the Nevada 6 Supreme Court considered; it would amount to the Court re-writing the petition. 7 E. Failure to Develop Factual Grounds 8 Finally, respondents argue that petitioner failed to develop the factual bases of 9 Grounds 1, 6(a), 7, and 8 in the state courts. This is an argument better directed toward 10 the merits of these grounds in light of the deference that this Court must give to state- 11 court determinations. 12 III. CONCLUSION 13 The amended petition (ECF No. 15) is mixed, containing both claims exhausted in 14 state court and claims not exhausted in state court, and it is subject to dismissal. See 15 Rose v. Lundy, 455 U.S. 509, 521-22 (1982); Szeto v. Rushen, 709 F.2d 1340, 1341 (9th 16 Cir. 1983). 17 It is therefore ordered that respondents’ motion to dismiss (ECF No. 15) is granted 18 in part. Ground 6(a) is dismissed as untimely. Ground 7, ground 8, and the part of Ground 19 6(e) described above are unexhausted. 20 It is further ordered that petitioner will have thirty (30) days from the date of entry 21 of this order to file a motion for dismissal without prejudice of the entire petition, for partial 22 dismissal of Ground 7, Ground 8, and the part of Ground 6(e) described above, or for 23 other appropriate relief. Within ten (10) days of filing such motion, petitioner must file a 24 signed declaration under penalty of perjury pursuant to 28 U.S.C. § 1746 that he has 25 conferred with his counsel in this matter regarding his options, that he has read the 26 /// 27 /// 28 /// 9 1 motion, and that he has authorized that the relief sought therein be requested. Failure to 2 comply with this order will result in the dismissal of this action. 3 DATED THIS 7th day of August 2017. 4 5 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?