Smith v. Baca et al

Filing 30

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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***

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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