Smith v. Baca et al
Filing
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ORDER denying ECF No. 24 Motion to Dismiss; respondents to file answer to ECF No. 18 Amended Petition for Writ of Habeas Corpus by 12/30/2017; reply due within (30) days of service of the answer. Signed by Judge Miranda M. Du on 11/14/2017. (Copies have been distributed pursuant to the NEF - KW)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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JACOB SMITH,
Case No. 3:14-cv-00512-MMD-VPC
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Petitioner,
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ORDER
v.
ISIDRO BACA, et al.,
Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the Court on
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respondents’ motion to dismiss (ECF No. 24). The motion and briefing present a single
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issue as to whether Ground 2 of the counseled amended petition relates back to Ground
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5 of the pro se original petition.
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I.
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BACKGROUND
Petitioner Jacob Smith challenges his Nevada state conviction, pursuant to a jury
verdict, of first-degree murder with the use of a deadly weapon.
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In Ground 5 of the original petition, Smith alleged that he was denied effective
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assistance of trial counsel when counsel failed to invoke the rule of exclusion at the
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beginning of the trial, thereby allowing investigating detectives Depoali and Granier to
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remain in the courtroom and continue to intimidate witnesses Natalie Wolfe and Joshua
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Wolfe to keep them from providing exculpatory testimony. Petitioner alleged that the
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detectives had threatened to send the witnesses to prison and further had threatened to
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take Natalie Wolfe’s children from her if the witnesses did not say what the detectives
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wanted. He alleged that this intimidation continued into the trial when the detectives were
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allowed to remain in the courtroom during the witnesses’ testimony. (ECF No. 1-1 at 13-
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14.)
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In Ground 2 of the counseled amended petition, petitioner alleges that he was
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denied rights to due process, equal protection and a fair trial when the prosecution
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allowed detectives Depoali and Granier to intimidate Natalie Wolfe and Joshua Wolfe
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before trial and by their presence in the courtroom at trial. (ECF No. 18 at 15-18.)
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II.
DISCUSSION
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A claim in an amended petition that is filed after the expiration of the one-year
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limitation period will be timely only if the claim relates back to a timely-filed claim pursuant
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to Rule 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises
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out of "the same conduct, transaction or occurrence" as the timely claim. Mayle v. Felix,
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545 U.S. 644 (2005). In Mayle, the Supreme Court held that habeas claims in an amended
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petition do not arise out of "the same conduct, transaction or occurrence" as prior timely
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claims merely because the claims all challenge the same trial, conviction or sentence.
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545 U.S. at 655-64. Rather, under the construction of the rule approved in Mayle, Rule
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15(c) permits relation back of habeas claims asserted in an amended petition "only when
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the claims added by amendment arise from the same core facts as the timely filed claims,
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and not when the new claims depend upon events separate in ‘both time and type' from
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the originally raised episodes." 545 U.S. at 657. In this regard, the reviewing court looks
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to "the existence of a common ‘core of operative facts' uniting the original and newly
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asserted claims." A claim that merely adds "a new legal theory tied to the same operative
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facts as those initially alleged" will relate back and be timely. 545 U.S. at 659 & n.5.
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The Court is persuaded that amended Ground 2 relates back to original Ground 5.
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Both the prosecutorial-misconduct claim in amended Ground 2 and the ineffective-
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assistance claim in original Ground 5 are tied to the same core of operative facts — the
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alleged intimidation of witnesses Natalie Wolfe and Joshua Wolfe by detectives Depoali
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and Granier prior to and at trial. The prosecutorial-misconduct claim in amended Ground
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2 presents a different legal theory tied to this same core of operative facts. See, e.g., Ha
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Van Nguyen v. Curry, 736 F.3d 1287, 1296-97 (9th Cir. 2013) (amended claim of
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ineffective assistance of counsel for failing to raise double jeopardy claim related back to
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substantive claim in original petition).
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The motion to dismiss therefore will be denied.
III.
CONCLUSION
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It is therefore ordered that respondents’ motion to dismiss (ECF No. 24) is denied.
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It is further ordered that respondents must file an answer to the amended petition
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within forty-five (45) days of entry of this order and that petitioner may file a reply within
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thirty (30) days of service of the answer.
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The Court is endeavoring to posture this matter for resolution in advance of March
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31, 2018, to the extent possible. Requests for extension based on scheduling conflicts
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between this action and other actions in this Court should be sought in the later-filed case.
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DATED THIS 14th day of November 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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