Coleman v. Williams et al

Filing 30

ORDER granting in part 19 Motion to Dismiss and denying 27 Motion to Stay. Petitioner shall have 30 days to inform Court how he wants to proceed as to Grounds 7 and 8. Signed by Judge Robert C. Jones on 3/4/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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MELVIN CHARLES COLEMAN,
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Petitioner,
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vs.
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BRIAN E. WILLIAMS et al.,
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Respondents.
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3:14-cv-00374-RCJ-VPC
ORDER

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Petitioner Melvin C. Coleman is a prisoner in the custody of the Nevada Department of

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Corrections (“NDOC”) pursuant to a judgment of conviction in the Second Judicial District

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Court in Clark County, Nevada for possessing a controlled substance and eluding a police

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officer. (Pet. 1, ECF No. 9). His direct appeal was denied by the Nevada Supreme Court on

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March 11, 2010, and the final appeal his state habeas corpus petition was denied on April 10,

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2014. (Id.). Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 on the following

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grounds: (1)–(2), (4)–(5) due process and equal protection violations based on a habitual criminal

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sentencing enhancement, which resulted in a sentence above the statutory maximum; (3) due

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process and equal protection violations based on the sentencing court’s lack of jurisdiction; (6)

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ineffective assistance of trial counsel for failure to have Petitioner examined for mental health or

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substance abuse issues; (7) ineffective assistance of trial and appellate counsel for failure to have

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the controlled substance independently tested at trial and failure to appeal the habitual criminal

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sentencing enhancement as a violation of Petitioner’s right to a jury; (8) ineffective assistance of

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trial counsel for failure to inform Petitioner that he was representing Petitioner’s son at the same

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time, which was a conflict of interest; (9)–(10) due process and equal protection violations via

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conviction based on insufficient evidence; (11) due process and equal protection violations via

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admission of bad acts evidence and evidence the state failed to preserve; and (12)–(13) violation

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of the Eighth Amendment via the state court’s application of the state’s habitual criminal

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sentencing enhancement.

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Upon screening under Rule 4 of the Rules Governing Section 2254 Cases in the United

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States District Court, the Court dismissed Grounds 1–5. Respondents have moved to dismiss the

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remaining grounds. Petitioner has filed a non-opposition/motion to stay and abey. The parties

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agree that at least Grounds 7 and 8 are unexhausted, making the remainder of the Petition mixed.

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Petitioner therefore asks the Court to stay and abey the Petition under Rhines v. Weber, 544 U.S.

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269, 277–79 (2005), and Respondents argue it should simply be dismissed under Rose v. Lundy,

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455 U.S. 509, 522 (1982) because a stay and abeyance is unwarranted.

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A stay and abeyance of a mixed petition is only appropriate in “limited circumstances,”

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where a petitioner has shown “good cause for the petitioner’s failure to exhaust his claims first in

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state court.” Rhines, 544 U.S. at 277. Petitioner admits that Grounds 7 and 8 were presented to

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the state district court in his state habeas corpus petition but were not presented to the Nevada

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Supreme Court on appeal. Petitioner argues, however, that his post-conviction appellate

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counsel’s failure to press Grounds 7 and 8 constitutes good cause for failing to exhaust those

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grounds under Martinez v. Ryan, 132 S. Ct. 1309 (2012), which recognized an exception to the

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rule announced in Coleman v. Thompson, 501 U.S. 722, 753–54 (1991) that ineffective

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assistance of post-conviction counsel cannot provide good cause for failure to exhaust a claim.
Respondents correctly note, however, that the Martinez Court found good cause based on

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ineffective assistance of counsel in initial collateral review proceedings as an equitable matter

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only because the initial collateral review proceedings in that case were the first opportunity the

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petitioner had under state law to bring his ineffective assistance of trial counsel claims. See id. at

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1317 (“Where, as here, the initial-review collateral proceeding is the first designated proceeding

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for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in

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many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.”).

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Respondents argue the Court should not extend Martinez by finding that good cause under

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Rhines can be found based on ineffective assistance of appellate counsel in collateral review

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proceedings. Indeed, the Martinez Court distinguished the facts in that case from the facts of the

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present case and the facts in Coleman, see id. at 1316 (“The alleged failure of counsel in

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Coleman was on appeal from an initial-review collateral proceeding, and in that proceeding the

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prisoner’s claims had been addressed by the state habeas trial court.”). Petitioner admits the

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same is true here. The Court has no doubt the Supreme Court would not extend the “narrow

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exception” recognized in Martinez, id. at 1315, to the facts of the present case, id. at 1320 (“The

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rule of Coleman governs in all but the limited circumstances recognized here. . . . It does not

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extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner

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to raise a claim of ineffective assistance at trial . . . .”).

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CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 19) is GRANTED IN

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PART, and the Motion to Stay and Abey (ECF No. 27) is DENIED. The Petition is mixed and

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therefore subject to dismissal under Rose v. Lundy, and there is no good cause for a stay and

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abeyance under Rhines v. Weber or Martinez v. Ryan. Petitioner may therefore either: (1)

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voluntarily dismiss Grounds 7 and 8 and proceed with the remaining grounds; or (2) voluntarily

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dismiss the Petition without prejudice and return to state court to exhaust Grounds 7 and 8. If

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Petitioner chooses the second option, the court makes no assurances about any possible state-law

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procedural bars or the timeliness of a subsequently filed federal habeas corpus petition.

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IT IS FURTHER ORDERED that Petitioner shall have thirty (30) days from the date of

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entry of this order into the electronic docket to: (1) inform the Court in a sworn declaration that

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he wishes to dismiss Grounds 7 and 8 and proceed only on the remaining grounds; or (2) inform

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this court in a sworn declaration that he wishes to dismiss the Petition to return to state court to

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exhaust Grounds 7 and 8. Failure to comply will result in the dismissal of the Petition.

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IT IS FURTHER ORDERED that if Petitioner elects to dismiss only Grounds 7 and 8

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and proceed on the remaining grounds, Respondents shall file and serve an answer, which must

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comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District

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Courts, within forty-five (45) days after Petitioner serves his declaration. Petitioner shall have

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forty-five (45) days from service of the answer to file and serve a reply.

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IT IS SO ORDERED.
Dated this 10thday of March, 2016.
4th day of February, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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