Smith v. Cox et al

Filing 45

ORDER denying ECF No. 41 Motion for District Judge to Reconsider Order; petitioner has 30 days to file sworn declaration that he wishes to: (1) abandon the unexhausted grounds for relief in his federal habeas petition and proceed on the e xhausted grounds or (2) to dismiss this petition without prejudice in order to return to state court. (See Order for further information and details). Signed by Judge Miranda M. Du on 3/2/2018. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

LARRY SMITH,

Case No. 3:15-cv-00034-MMD-VPC

10

Petitioner,

ORDER

v.
11
JAMES COX, et al.,
12
Respondents.
13
14

This Court granted respondents’ motion to dismiss petitioner Larry Smith’s pro se

15

28 U.S.C. § 2254 habeas petition in part and concluded that grounds 1(d), 1(e), 3 and 10

16

were unexhausted (ECF No. 22). Smith filed a motion for stay and abeyance in

17

accordance with Rhines v. Weber (ECF No. 34), which this court denied (ECF No. 40).

18

Now before the Court is Smith’s motion for reconsideration of the denial of the motion to

19

stay (ECF No. 41). Respondents opposed (ECF No. 43), and Smith replied (ECF No. 44).

20

Where a ruling has resulted in final judgment or order, a motion for reconsideration

21

may be construed either as a motion to alter or amend judgment pursuant to Fed. R. Civ.

22

P. 59(e), or as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b). School

23

Dist. No. 1J Multnomah County v. AC&S, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), cert.

24

denied 512 U.S. 1236 (1994).

25
26
27
28

Fed. R. Civ. P. 60(b) provides that the court may relieve a party from a final
judgment or order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud

1

(whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or otherwise vacated; or applying it
prospectively is no longer equitable; or (6) any other reason that justifies
relief.

2
3
4
5

Rule 59(e) of the Federal Rules of Civil Procedure provides that any “motion to alter or

6

amend a judgment must be filed no later than 28 days after entry of the judgment.”

7

Furthermore, a motion under Fed. R. Civ. P. 59(e) “should not be granted, absent highly

8

unusual circumstances, unless the district court is presented with newly discovered

9

evidence, committed clear error, or if there is an intervening change in the controlling

10

law.” Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001), quoting McDowell v. Calderon,

11

197 F.3d 1253, 1255 (9th Cir. 1999).

12

Motions to reconsider are generally left to the discretion of the trial court. See

13

Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed

14

on a motion to reconsider, a party must set forth facts or law of a strongly convincing

15

nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v.

16

City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part

17

on other grounds 828 F.2d 514 (9th Cir. 1987).

18

This Court rejected Smith’s argument in his motion for stay that he had good cause

19

for failure to exhaust the claims due to his lack of understanding of the procedural process

20

and his mistaken belief that he had fairly presented the claims to the Nevada Supreme

21

Court in his state postconviction petition (ECF No. 34). See Wooten v. Kirkland, 540 F.3d

22

1019 (9th Cir. 2008). Smith now argues, with no elaboration, that he did in fact exhaust

23

the claims (ECF No. 41). Further, he appears to alternatively argue, for the first time, that

24

ineffective assistance of counsel on appeal and for his state postconviction petition

25

provides cause for his failure to exhaust the claims. In Blake v. Baker, the Ninth Circuit

26

determined that a showing of ineffective assistance of postconviction counsel in line with

27

///

28

///
2

1

Martinez v. Ryan, 566 U.S. 1 (2012),1 may serve as good cause for a stay if the petitioner

2

provides evidence to support the underlying theory of ineffective assistance of counsel.

3

745 F.3d at 982-984. The Court finds that Smith is not entitled to a stay.

4

First, Smith sets forth no reason why he was unable to argue in his motion for stay

5

that IAC of appellate and postconviction counsel provides good cause for a stay. He

6

certainly has not demonstrated highly unusual circumstances, newly discovered

7

evidence, clear error, or an intervening change in the controlling law that would warrant

8

granting his motion for reconsideration. Herbst, 260 F.3d at 1044. Moreover, Martinez’s

9

application is to claims that state postconviction counsel failed to raise trial-counsel IAC

10

claims. Smith’s claim in ground 10 is a claim of trial court error, and his claim in ground 3

11

is a claim that a trial witness improperly vouched for the victim; these are not IAC claims.

12

Thus, any claim that postconviction counsel was ineffective is irrelevant to Smith’s failure

13

to fairly present grounds 3 and 10 in state court in any event.

14

Second, the United States Supreme Court has subsequently declined to expand

15

the “narrow” Martinez exception to claims of ineffective assistance of appellate counsel.

16

Davila v. Davis 137 S.Ct. 2058, 2065 (June 26, 2017). Ground 1(e) is a claim of appellate

17

IAC. Thus, a Martinez argument that postconviction counsel was ineffective is also

18

irrelevant to Smith’s failure to fairly present ground 1(e) in state court.

19

Finally, with respect to the ground 1(d) claim of IAC of trial counsel, the Court notes

20

that Smith has not demonstrated that it is potentially meritorious. He claims trial counsel

21

failed to ensure that the trial court inform Smith of the sex offender registration

22

requirements prior to sentencing. However, this was not a guilty plea; a jury convicted

23

Smith of lewdness with a minor. Thus, it is utterly unclear how Smith could have been

24

prejudiced by not being fully aware of the sex offender registration requirements prior to

25

sentencing.

26
27
28

1The

Court held in Martinez that ineffective assistance of state postconviction
counsel may provide cause to excuse the procedural default of a claim of ineffective
assistance of trial counsel. 566 U.S. 1. Smith never invokes Martinez, but appears to be
making a Martinez argument.
3

1

The Court determines that Smith has failed to make an adequate showing under

2

either Rule 60(b) or 59(e) that this Court's order denying his motion for stay and abeyance

3

should be reversed. Accordingly, Smith motion for reconsideration of the denial of his

4

motion for stay and abeyance is denied. Petitioner will be given a final opportunity to

5

inform this Court as to whether he wishes to voluntarily abandon these claims and

6

proceed on the exhausted grounds (see infra).

7
8

It is therefore ordered that petitioner’s motion for district judge to reconsider order
(ECF No. 41) is denied.

9

It is further ordered that petitioner will have thirty (30) days to either: (1) inform this

10

Court in a sworn declaration that he wishes to formally and forever abandon the

11

unexhausted grounds for relief in his federal habeas petition and proceed on the

12

exhausted grounds; or (2) inform this Court in a sworn declaration that he wishes to

13

dismiss this petition without prejudice in order to return to state court to exhaust his

14

unexhausted claims.

15

It is further ordered that if petitioner elects to abandon his unexhausted grounds,

16

respondents will have thirty (30) days from the date petitioner serves his declaration of

17

abandonment in which to file an answer to petitioner’s remaining grounds for relief. The

18

answer must contain all substantive and procedural arguments as to all surviving grounds

19

of the petition, and must comply with Rule 5 of the Rules Governing Proceedings in the

20

United States District Courts under 28 U.S.C. §2254.

21
22
23

It is further ordered that petitioner will have thirty (30) days following service of
respondents’ answer in which to file a reply.
DATED THIS 2nd day of March 2018.

24
25
26

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

27
28
4