Morris v. Baker et al

Filing 48

ORDER that petitioner's motion for appointment of counsel ECF No. 43 is DENIED; petitioner's motion for reconsideration is GRANTED IN PART; respondents to supplement the record to include all documents relevant and related to petitioners state court motion to correct illegal sentence 5/10/2018; petitioners stipulation to have the court rule on his unexhausted claims ECF No. 44 is DENIED petitioner to either file a motion to dismiss seeking partial dismissal; dismissal of entire petition without prejudice; a motion for stay and abeyance by 5/10/2018. Signed by Judge Larry R. Hicks on 4/10/2018. (Copies have been distributed pursuant to the NEF - KW)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 BRENT MORRIS, 10 11 12 Case No. 3:14-cv-00372-LRH-WGC Petitioner, ORDER v. RENEE BAKER, et al., Respondents. 13 14 This pro se habeas matter comes before the Court on petitioner’s motion for 15 appointment of counsel (ECF No. 43) and “Stipulation to Have This Court Rule on His 16 Unexhausted Claims” (ECF No. 44). Respondents have responded to the stipulation 17 (ECF No. 47). Petitioner has not replied, and the time for doing so has expired. 18 In his “stipulation,” petitioner asserts that two of the grounds previously found 19 unexhausted by the Court are in fact exhausted. The Court therefore construes the 20 stipulation, in part, as a motion for reconsideration. 21 I. Appointment of Counsel 22 There is no constitutional right to appointed counsel for a federal habeas corpus 23 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 24 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. 25 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); 26 Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). 27 However, counsel must be appointed if the complexities of the case are such that denial 28 1 1 of counsel would amount to a denial of due process, and where the petitioner is a person 2 of such limited education as to be incapable of fairly presenting his claims. See Chaney, 3 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition 4 in this case and all of petitioner’s filings are sufficiently clear in presenting the issues that 5 petitioner wishes to raise, and the legal issues are not particularly complex. Therefore, 6 counsel is not justified, and the motion for appointment of counsel will be denied. 7 II. Partial Reconsideration 8 On December 8, 2017, the Court issued an order finding several of petitioner’s 9 claims to be unexhausted, including Ground 8 and Ground 10(B)(6) in part. In his 10 stipulation, petitioner asserts that Grounds 8 and 10(B)(6) are exhausted as they have 11 been addressed on their merits by the Nevada Supreme Court. 12 Petitioner’s argument relies on record documents that were not before the Court 13 at the time it rendered its decision. Specifically, petitioner asserts that on August 4, 2015, 14 he filed a motion to modify his sentence in the trial court, and that the Nevada Supreme 15 Court affirmed the denial of the motion on September 19, 2016.1 (ECF No. 44 at 13-14). 16 Petitioner has provided the Court with a copy of the Nevada Supreme Court’s decision. 17 (ECF No. 44 at 32-34). Because petitioner has presented additional state court record 18 documents that were not before the Court at the time of its decision, the Court will 19 construe petitioner’s statements in his stipulation as a motion for reconsideration of the 20 Court’s ruling on Grounds 8 and 10(B)(6). The Court has inherent authority to reconsider 21 any of its rulings before they become final, absent some applicable rule or statute to the 22 contrary. United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000). 23 In Ground 8, petitioner asserts that the trial court erred in adjudicating petitioner a 24 habitual criminal when it used prior convictions that were stale, trivial, and remote and 25 failed to make a finding that habitual criminal status was fair and just. He further asserts 26 The Court notes that while petitioner’s motion was apparently filed in the state trial court before respondents filed their motion to dismiss, the Nevada Supreme Court did not rule on it until after the motion to dismiss was fully briefed. 1 27 28 2 1 that the adjudication was improper because a Michigan conviction on which it was 2 partially based was vacated a few months after sentencing. (See ECF No. 25 at 58). 3 Petitioner did not present Ground 8 to the Nevada Supreme Court in either his direct 4 appeal or his appeal of the denial of his state post-conviction habeas petition, and thus 5 the Court previously concluded the claim was unexhausted. 6 It appears that petitioner’s motion to correct illegal sentence, which the Nevada 7 Supreme Court addressed in its order of September 19, 2016, exhausted petitioner’s 8 claim that his habitual criminal adjudication was improper insofar as it was based on an 9 allegedly overturned conviction out of Michigan. (See ECF No. 44 at 32-34). The Court 10 therefore reconsiders its prior order and concludes that Ground 8 is exhausted to that 11 extent – but only to that extent. While petitioner’s appeal of his motion also included the 12 remaining assertions of Ground 8, the Nevada Supreme Court summarily rejected these 13 arguments because they were outside the narrow scope of claims permissibly raised in a 14 motion to correct illegal sentence.2 (Id. at 34). Petitioner therefore presented these claims 15 for “the first and only time in a procedural context in which [their] merits [would] not be 16 considered,” and as such, he did not fairly present the claims to the state’s highest court. 17 See Castille v. Peoples, 489 U.S. 346, 351 (1989). Ground 8 therefore remains 18 unexhausted to the extent it asserts the habitual criminal adjudication was improper 19 because the trial court failed to make the necessary findings and relied on convictions 20 that were stale, trivial, and remote. 21 Although petitioner argues that Ground 10(b)6) is also exhausted by virtue of the 22 motion to correct sentence, his argument fails. Ground 10(B)(6) asserts an ineffective 23 assistance of appellate counsel claim based on the failure to raise the above substantive 24 claims on direct appeal. The motion to correct illegal sentence did not raise any such 25 claim, nor could it have done so. See Edwards v. State, 918 P.2d 321, 324 (Nev. 1996). 26 2 27 See (last visited April 6, 2018) (the docket of petitioner’s appeal in Case No. 68962). Presumably, petitioner made the same arguments in his trial court motion, but the Court does not have that motion before it at this time. 28 3 1 Accordingly, the motion to reconsider is denied as to Ground 10(B)(6). The Court’s 2 previous finding that Ground 10(B)(6) is unexhausted in part therefore stands. 3 III. Stipulation Regarding Unexhausted Claims 4 In its December 8, 2017, order, the Court rejected the request of both parties to 5 find petitioner’s unexhausted claims subject to anticipatory default because it would not 6 do so “absent an unequivocal stipulation by the petitioner that the unexhausted claims in 7 fact would be denied on state procedural grounds if he returned to state court to present 8 the claims.” (ECF No. 42 at 10). The Court directed petitioner to make one of three 9 choices: (1) move for partial dismissal of only the unexhausted claims; (2) move to dismiss 10 the entire petition without prejudice so he could return to state court to exhaust his 11 unexhausted claims; or (3) file a motion for other appropriate relief, including a motion for 12 a stay and abeyance so he could exhaust his claims in state court. 13 Instead of filing one of the advised motions, petitioner filed a “Stipulation to Have 14 the Court Rule on his Unexhausted Claims.” (ECF No. 44). In the stipulation, petitioner 15 does not unequivocally stipulate that his claims would be procedurally barred if he 16 returned to state court. Rather, he simply “stipulate[s] to having the Court reach the merits 17 of [his] unexhausted” claims, (see, e.g., id. at 8), and makes conclusory assertions that 18 the state courts would deny his claims on state procedural grounds without conceding 19 specifically that any ground he could raise to establish cause in the state courts would be 20 rejected by the state courts. While some of petitioner’s possible cause arguments, such 21 as ineffective assistance of counsel as to Grounds 2, 3, 6, and 7, have already been 22 rejected on their merits by the state courts, petitioner does not stipulate that these are the 23 only grounds he has available to establish cause as to those claims, nor has he 24 unequivocally stipulated that he cannot meet the fundamental miscarriage of justice 25 exception to procedural default. The Court therefore finds that petitioner’s “stipulation” is 26 insufficient to apply the doctrine of anticipatory default to his unexhausted claims, and his 27 28 4 1 request that the Court proceed to the “merits” of his unexhausted claims will therefore be 2 denied. 3 Accordingly, as the petition remains mixed, it will be dismissed without prejudice 4 pursuant to Rose v. Lundy, 455 U.S. 509, 510 (1982), unless the petitioner either: (1) 5 moves for partial dismissal of only the unexhausted claims; (2) moves to dismiss the entire 6 petition without prejudice so petitioner can return to state court to exhaust his claims; or 7 (3) moves for stay and abeyance while petitioner exhausts his claims in state court.3 8 Conclusion In accordance with the foregoing, IT IS THEREFORE ORDERED that petitioner’s 9 10 motion for appointment of counsel (ECF No. 43) is DENIED. 11 IT IS FURTHER ORDERED that petitioner’s motion for reconsideration is 12 GRANTED IN PART, as set forth above. Ground 8 is exhausted to the extent it asserts 13 the habitual criminal adjudication was improper because it was based on a Michigan 14 conviction that was later overturned, and that part of the Court’s December 8, 2017, order 15 (ECF No. 42) finding otherwise is therefore VACATED. The motion to reconsider is 16 DENIED in all other respects, and the Court’s December 8, 2017, order is in all other 17 respects reaffirmed. 18 IT IS FURTHER ORDERED that the respondents shall, within thirty days of the 19 date of this order, supplement the record to include all documents relevant and related to 20 petitioner’s state court motion to correct illegal sentence, filed on or about August 4, 2015. 21 IT IS FURTHER ORDERED that petitioner’s stipulation to have the court rule on 22 his unexhausted claims (ECF No. 44) is DENIED. 23 IT IS FURTHER ORDERED that petitioner shall, within thirty days of the date of 24 this order, mail to the Clerk for filing either: (1) a motion to dismiss seeking partial 25 dismissal of only the unexhausted claims; (2) a motion to dismiss the entire petition 26 3 27 Petitioner is advised that the Court can grant a stay and abeyance only in limited circumstances, and that in order for petitioner to obtain a stay he must show good cause for the failure to first exhaust his claims in state court and that his claims are not plainly meritless. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). 28 5 1 without prejudice in order to return to state court to exhaust the unexhausted claims; or 2 (3) a motion for a stay and abeyance asking this Court to hold the exhausted claims in 3 abeyance while petitioner returns to state court to exhaust the unexhausted claims. The 4 entire petition will be dismissed without prejudice for lack of complete exhaustion if a 5 motion as provided for herein is not timely mailed for filing. 6 DATED this 10th day of April, 2018. 7 8 LARRY R. HICKS UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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?