O'Keefe v. LeGrand

Filing 106

ORDER - Respondent's motion to dismiss (ECF No. 56 is GRANTED in part as follows: The portion of ground 1 re equal protection and the portion of ground 3 re violation of rights pursuant to Shad v. Arizona are UNEXHAUSTED. Grounds 2 an d 5 are DISMISSED as set forth herein. Petitioner shall inform the court via sworn declaration re unexhausted grounds, or file motion for stay and abeyance, by 4/26/2018. If P elects to abandon unexhausted ground, then answer to remaining ground s due 30 days after service of declaration of abandonment; reply due 30 days thereafter. Respondents' Motions to extend time (ECF Nos. 51 , 83 ) are GRANTED nunc pro tunc. Petitioner's Motions to strike (ECF Nos. 52 , 87 ) are both DENIED. Petitioner's Motions to strike (ECF Nos. 73 , 75 ) are both DENIED. Petitioner's Motion for bail pending appeal and motion for copies (ECF Nos. 54 , 74 ) are both DENIED. Petitioner's Motion to withdraw motion (ECF N o. 88 ) is GRANTED. The Motion to extend copywork (ECF No. 82 ) is WITHDRAWN. Petitioner's Motion for summary judgment (ECF No. 94 ) is DENIED. Respondents' Motion to strike (ECF No. 100 is GRANTED. Clerk SHALL STRIKE petitioner's Notice (ECF No. 99 ). Signed by Judge Robert C. Jones on 3/27/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
BRIAN KERRY O’KEEFE,

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Case No. 3:14-cv-00477-RCJ-VPC

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Petitioner,

ORDER

v.
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ROBERT L. LEGRAND, et al.,
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Respondents.
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This habeas matter comes before the court on respondents’ motion to dismiss

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certain claims in petitioner Brian Kerry O’Keefe’s pro se second-amended petition (ECF

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No. 56). O’Keefe opposed (ECF No. 79), and respondents replied (ECF No. 91).

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I.

Procedural History and Background

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O’Keefe was tried in Nevada state court three times on charges of murder with use

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of a deadly weapon. The first jury convicted him of second-degree murder, and the

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judgment of conviction was entered on May 8, 2009 (exhibit 60).1 On April 7, 2010, the

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Nevada Supreme Court reversed O’Keefe’s conviction and remanded for a new trial

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because “the district court abused its discretion when it instructed the jury that second-

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degree murder includes involuntary killings that occur in the commission of an unlawful

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act because the State’s charging document did not allege that O’Keefe killed the victim

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while he was committing an unlawful act and the evidence at trial did not support this

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theory of second-degree murder.” Exh. 80.

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Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 56, and are found
at ECF Nos. 57-70, 76.
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On August 19, 2010, a second-amended information was filed, charging O’Keefe
with murder in the second degree with use of a deadly weapon. Exh. 120. The jury
deadlocked, and the court declared a mistrial. Exhs. 135, 135. Pursuant to a third trial,
the jury convicted O’Keefe on June 15, 2012. Exh. 207. The state district court
sentenced him to a term of 120 to 300 months, with a consecutive term of 8 to 20 years
for the deadly weapon enhancement. Exhs. 211, 212. Judgment of conviction was
entered on September 5, 2012. Exh. 217.
The Nevada Supreme Court affirmed O’Keefe’s conviction on April 10, 2013. Exh.
233. A petition for certiorari with the United States Supreme Court was denied on
October 15, 2013. Exh. 244.
O’Keefe filed a motion to modify and/or correct illegal sentence on January 27, 2014.
Exh. 255. The Nevada Supreme Court affirmed the denial of that motion on July 23,
2014. Exh. 289. O’Keefe filed a state postconviction habeas corpus petition and a
counseled, supplemental state petition. Exhs. 308, 337. The Nevada Supreme Court
affirmed the denial of the petition as procedurally barred on June 22, 2016. Exh. 427.
Remittitur issued on December 16, 2016. Exh. 447.
O’Keefe dispatched his federal habeas petition for filing on or about September 15,
2014 (ECF No. 1-1). On February 1, 2017, this court granted petitioner’s motion to
withdraw counsel and proceed pro se (ECF No. 49). O’Keefe filed a pro se secondamended petition; respondents now argue that some claims in the second-amended
petition do not relate back to any timely-filed earlier petition and that some grounds are
unexhausted or noncognizable in federal habeas (ECF No. 56).
II.

Legal Standards & Analysis
a. Relation Back
Respondents argue that several grounds in the second-amended petition do not

relate back to a timely-filed petition and should thus be dismissed as untimely (ECF No.
56). The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year
statute of limitations on the filing of federal habeas corpus petitions. 28 U.S.C. §
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2244(d). The one-year time limitation can run from the date on which a petitioner’s
judgment became final by conclusion of direct review, or the expiration of the time for
seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a properly filed petition for
state postconviction relief can toll the period of limitations. 28 U.S.C. § 2244(d)(2).
Respondents state in their motion to dismiss that 104 days of the one-year
limitations period had expired when O’Keefe filed this federal habeas action (ECF No.
56, p. 9. The Ninth Circuit vacated this court’s dismissal of the petition on July 27,
2016, and the order on mandate issued on August 23, 2016 (ECF Nos. 30, 32). On
November 3, 2016, O’Keefe commenced filing motions to withdraw counsel and
proceed pro se and for leave to file an amended petition (see, e.g., ECF Nos. 33, 42).
On February 1, 2017, this court granted O’Keefe leave to file an amended petition within
90 days, and O’Keefe filed his second-amended petition March 15, 2017 (ECF Nos. 49,
50). In light of the procedural posture of this case, O’Keefe is entitled to equitable tolling
of the statute of limitations until the filing of the second-amended petition. Holland v.
Florida, 560 U.S. 631, 649 (2009) (quoting prior authority) (a petitioner may be entitled
to equitable tolling if he can show “‘(1) that he has been pursuing his right diligently, and
that (2) some extraordinary circumstance stood in his way’ and prevented timely filing”).
Respondents argument that the claims in the second-amended petition must relate back
to the first-amended petition is, therefore, unavailing.
b. Exhaustion
State prisoners seeking federal habeas relief must comply with the exhaustion rule
codified in § 2254(b)(1):

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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it
appears that –
(A) The applicant has exhausted the remedies available in the court so the
State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.
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The purpose of the exhaustion rule is to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are presented to
the federal court, and to “protect the state courts’ role in the enforcement of federal law.”
Rose v. Lundy, 455 U.S. 509, 518 (1982); O’Sullivan v. Boerckel, 526 U.S. 838, 844
(1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains
unexhausted until the petitioner has given the highest available state court the
opportunity to consider the claim through direct appeal or state collateral review
proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v.
McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).
A habeas petitioner must “present the state courts with the same claim he urges
upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal
constitutional implications of a claim, not just issues of state law, must have been raised
in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481
(D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court
must be “alerted to the fact that the prisoner [is] asserting claims under the United
States Constitution” and given the opportunity to correct alleged violations of the
prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b)
“provides a simple and clear instruction to potential litigants: before you bring any claims
to federal court, be sure that you first have taken each one to state court.” Jiminez v.
Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520
(1982)). “[G]eneral appeals to broad constitutional principles, such as due process,
equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However,
citation to state caselaw that applies federal constitutional principles will suffice.
Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

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A claim is not exhausted unless the petitioner has presented to the state court the
same operative facts and legal theory upon which his federal habeas claim is based.
Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The
exhaustion requirement is not met when the petitioner presents to the federal court facts
or evidence which place the claim in a significantly different posture than it was in the
state courts, or where different facts are presented at the federal level to support the
same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge
v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455,
458 (D. Nev. 1984).
Ground 1
O’Keefe asserts that his Fifth and Fourteenth Amendment rights to due process,
equal protection, and a fair trial were violated because the “trial court failed to stay trial
despite notice of writ order” (ECF No. 50, p. 17). O’Keefe appears to claim here that the
state district court erred by failing to postpone his state trial when he had a pending
issue in federal court regarding a double jeopardy violation.
This ground was exhausted as a Fifth and Fourteenth Amendment due process and
fair trial claim only; the equal protection claim is unexhausted. See exh. 228, p. 13.
Ground 3
O’Keefe contends that his Fifth and Fourteenth Amendment rights to be free from
double jeopardy were violated because the state courts ruled contrary to Schad v.
Arizona, 501 U.S. 624 (1991) and because “when the Nevada Supreme Court stated
that the ‘evidence presented at trial did not support this theory of second degree
murder,’ jeopardy terminated” (ECF No. 50, pp. 43-50).
Respondents are correct that O’Keefe did not present a claim based on Schad v.
Arizona to the Nevada Supreme Court. See exh. 228, pp. 7-11. Accordingly, that
portion of ground 3 is unexhausted. O’Keefe did, however, present the claim that the
state district court violated his rights against double jeopardy when he was tried a third

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time after the Nevada Supreme Court reversed his conviction stating that “the evidence
presented at trial did not support this theory of second-degree murder.” Id.

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c. Claims Cognizable in Federal Habeas Corpus
A state prisoner is entitled to federal habeas relief only if he is being held in custody
in violation of the constitution, laws or treaties of the United States. 28 U.S.C. §
2254(a). Unless an issue of federal constitutional or statutory law is implicated by the
facts presented, the claim is not cognizable under federal habeas corpus. Estelle v.
McGuire, 502 U.S. 62, 68 (1991). A petitioner may not transform a state-law issue into
a federal one merely by asserting a violation of due process. Langford v. Day, 110 F.3d
1380, 1381 (9th Cir. 1996). Alleged errors in the interpretation or application of state
law do not warrant habeas relief. Hubbart v. Knapp, 379 F.3d 773, 779-80 (9th Cir.
2004).
Grounds 2 & 5
O’Keefe argues in ground 2 that his Fifth and Fourteenth Amendment rights to due
process, equal protection, and a fair trial were violated because the trial court conducted
a trial without subject matter jurisdiction (ECF No. 50, p. 30). In ground 5 he alleges
that his First, Fifth, Sixth, and Fourteenth Amendment rights to “law of the case, access
to the court actual innocence” were violated. Id. at 62. He claims that he is innocent
and has “legally been declared acquitted,” but the State re-tried him on the “same and
only theory.” Id.
Respondents argue that these grounds are unexhausted and noncognizable (ECF
No. 56, pp. 15-17, 19). First, this court notes that O’Keefe’s statement that he was
acquitted misrepresents the state proceedings. On his appeal from his first trial, the
Nevada Supreme Court reversed and remanded for a new trial. Exh. 80. Moreover,
this court views grounds 2 and 5 as either subsumed within or duplicative of his double
jeopardy claim set forth in ground 3. Grounds 2 and 5 are, therefore, dismissed.

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III.

Petitioner’s Options Regarding Unexhausted Claim

A federal court may not entertain a habeas petition unless the petitioner has
exhausted available and adequate state court remedies with respect to all claims in the
petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both
exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the
court finds that the portion of ground 1 that alleges an equal protection claim and the
portion of ground 3 that claims a violation of petitioner’s rights pursuant to Shad v.
Arizona are unexhausted. Grounds 2 and 5 are dismissed as duplicative. Because the
court finds that the petition contains unexhausted claims, petitioner has these options:

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1.
He may submit a sworn declaration voluntarily abandoning
the unexhausted claims in his federal habeas petition, and proceed only
on the exhausted claims;
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He may return to state court to exhaust his unexhausted
claims, in which case his federal habeas petition will be denied without
prejudice; or
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He may file a motion asking this court to stay and abey his
exhausted federal habeas claims while he returns to state court to exhaust
his unexhausted claims.
With respect to the third option, a district court has discretion to stay a petition
that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005).
The Rhines Court stated:

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[S]tay and abeyance should be available only in limited circumstances.
Because granting a stay effectively excuses a petitioner’s failure to
present his claims first to the state courts, stay and abeyance is only
appropriate when the district court determines there was good cause for
the petitioner’s failure to exhaust his claims first in state court. Moreover,
even if a petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his unexhausted
claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application
for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts
of the State”).
Rhines, 544 U.S. at 277.

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If petitioner wishes to ask for a stay, he must file a motion for stay and abeyance
in which he demonstrates good cause for his failure to exhaust his unexhausted claims
in state court, and presents argument regarding the question of whether or not his
unexhausted claims are plainly meritless. Respondent would then be granted an
opportunity to respond, and petitioner to reply. Or petitioner may file a declaration
voluntarily abandoning his unexhausted claims, as described above.

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Petitioner’s failure to choose any of the three options listed above, or seek other
appropriate relief from this court, will result in his federal habeas petition being
dismissed. Petitioner is advised to familiarize himself with the limitations periods for
filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations
periods may have a direct and substantial effect on whatever choice he makes
regarding his petition.

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Finally, O’Keefe has filed a motion for bail pending appeal (ECF No. 54).
However, this court has not granted his petition. Therefore, O’Keefe’s case is not on
appeal. The motion is denied.
IV.

Conclusion
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 56)

is GRANTED in part as follows:
The portion of ground 1 that alleges an equal protection claim and the portion of
ground 3 that claims a violation of petitioner’s rights pursuant to Shad v. Arizona are
UNEXHAUSTED.
Grounds 2 and 5 are DISMISSED as set forth in this order.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either:
(1) inform this court in a sworn declaration that he wishes to formally and forever
abandon the unexhausted ground for relief in his federal habeas petition and proceed
on the exhausted grounds; OR (2) inform this court in a sworn declaration that he
wishes to dismiss this petition without prejudice in order to return to state court to

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exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking
this court to hold his exhausted claims in abeyance while he returns to state court to
exhaust his unexhausted claim. If petitioner chooses to file a motion for a stay and
abeyance, or seek other appropriate relief, respondents may respond to such motion as
provided in Local Rule 7-2.
IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted
ground, respondents shall have thirty (30) days from the date petitioner serves his
declaration of abandonment in which to file an answer to petitioner’s remaining grounds
for relief. The answer shall contain all substantive and procedural arguments as to all
surviving grounds of the petition, and shall comply with Rule 5 of the Rules Governing
Proceedings in the United States District Courts under 28 U.S.C. §2254.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following
service of respondents’ answer in which to file a reply.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within
the time permitted, this case may be dismissed.
IT IS FURTHER ORDERED that respondents’ motion to extend time to file the
motion to dismiss (ECF No. 51) and motion to extend time to file the reply in support of
the motion (ECF No. 83) are both GRANTED nunc pro tunc.
IT IS FURTHER ORDERED that petitioner’s two motions to strike respondents’
motions for extension of time (ECF Nos. 52 and 87) are both DENIED.
IT IS FURTHER ORDERED that petitioner’s motion to strike any response to the
second-amended petition by respondents as untimely (ECF No. 73) and amended
motion to strike (ECF No. 75) are both DENIED.
IT IS FURTHER ORDERED that petitioner’s motion for bail pending appeal (ECF
No. 54), motion for copies (ECF No. 74), and emergency motion (ECF No. 103) are all
both DENIED.

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IT IS FURTHER ORDERED that petitioner’s motion to voluntarily withdraw
motion to extend copywork limit (ECF No. 88) is GRANTED.
IT IS FURTHER ORDERED that the motion to extend copywork limit (ECF No.
82) is WITHDRAWN.
IT IS FURTHER ORDERED that petitioner’s motion for summary judgment (ECF
No. 94) is DENIED.
IT IS FURTHER ORDERED that respondents’ motion to strike petitioner’s
“urgent motion of notice” (ECF No. 100) is GRANTED. The Clerk SHALL STRIKE
petitioner’s notice – urgent motion of notice to the court that new attorney for
respondent manifests intention to violate court’s order (ECF No. 99).

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DATED: 27 March 2018.
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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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