Reid v. Baker et al

Filing 55

ORDER - The Respondents' Motion to Dismiss (ECF No. 36 ) is denied. Respondents shall file an answer to the Second Amended Petition (ECF No. 32 ) within sixty days of the date of this order. Reid will have sixty days from service of the answer within which to file a reply. Signed by Judge Howard D. McKibben on 3/22/2021. (Copies have been distributed pursuant to the NEF - AB)

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 1 of 17

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

RAFAEL REID,

6

Case No. 3:17-cv-00532-HDM-CLB
Petitioner,

v.

7

ORDER

WILLIAM GITTERE, et al.,

8

Respondents.

9
10

This counseled habeas petition pursuant to 28 U.S.C. § 2254

11

comes before the court on the respondents’ motion to dismiss (ECF

12

No. 36). The petitioner, Rafael Reid (“Reid”), has opposed (ECF

13

No. 48), and the respondents have replied (ECF No. 54).

14

I. Procedural Background

15

Reid

challenges

his

2015

Nevada

state

court

conviction,

16

pursuant to a guilty plea, of attempt sexual assault and robbery.

17

(Exs. 30 & 47). 1 After filing, and failing to prevail on, a motion

18

to withdraw his guilty plea in the trial court, Reid filed a direct

19

appeal through counsel Michael Sanft. (Exs. 42-44 & 50). The Nevada

20

Court of Appeals affirmed on May 17, 2016, and the Nevada Supreme

21

Court issued remittitur on June 13, 2016. (Exs. 63 & 64).

22

Reid asserts that he did not learn of the decision on his

23

direct appeal until more than a year later – on July 25, 2017. By

24
25
26
27

The exhibits containing the relevant state court record cited in
this order are located at ECF Nos. 17, 19, 37-40 and 49-50. The
court will cite to the respondents’ exhibits (located at ECF Nos.
37-40) by exhibit number and to the petitioner’s exhibits (located
at ECF Nos. 17, 19 and 49) by ECF number.
1

28
1

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 2 of 17

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then, the deadline for filing a state court postconviction petition

2

had passed and the deadline for a federal habeas petition was

3

looming.

4

Reid filed the instant federal petition on August 29, 2017.

5

The court appointed counsel, and counsel filed an amended petition

6

on July 24, 2018. (ECF No. 16). Counsel also moved to stay and

7

abey proceedings so that Reid could exhaust his claims through a

8

state court postconviction petition. The court granted Reid’s

9

motion, and proceedings were stayed while Reid pursued his state

10

court petition.

11

The state court denied Reid’s petition on the grounds it was

12

untimely, and the Nevada Court of Appeals affirmed. (Exs. 71, 79

13

& 94). Reid subsequently returned to this court and moved to reopen

14

proceedings and for leave to file a second amended petition. The

15

court granted both motions. Reid filed his second amended petition

16

on April 23, 2020. (ECF No. 32). The instant motion to dismiss

17

followed.

18

II. Timeliness

19

The respondents argue this action should be dismissed because

20

not one of Reid’s three petitions was filed before the federal

21

statute

22

original and subsequent petitions were filed after the expiration

23

of the statutory limitations period, but he asserts that he should

24

be granted equitable tolling and that his claims otherwise then

25

relate back to a timely filed petition.

of

limitations

expired.

Reid

does

not

deny

that

his

26

The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

27

amended the statutes controlling federal habeas corpus practice to

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Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 3 of 17

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include a one-year statute of limitations on the filing of federal

2

habeas

3

limitations, the habeas corpus statute provides in relevant part:

4

A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of . . . the
date on which the judgment became final by the conclusion
of direct review or the expiration of the time for
seeking such review . . . .

5
6
7
8

corpus

petitions.

With

respect

to

the

statute

of

28 U.S.C. § 2244(d)(1)(A). 2

9

A claim in an amended petition that is filed after the

10

expiration of the one-year limitation period will be timely only

11

if the claim relates back to a timely filed claim pursuant to Rule

12

15(c) of the Federal Rules of Civil Procedure, on the basis that

13

the

14

occurrence” as the timely claim. Mayle v. Felix, 545 U.S. 644

15

(2005). In Mayle, the Supreme Court held that habeas claims in an

16

amended petition do not arise out of “the same conduct, transaction

17

or occurrence” as prior timely claims merely because the claims

18

all challenge the same trial, conviction, or sentence. 545 U.S. at

19

655-64. Rather, under the construction of the rule approved in

20

Mayle, Rule 15(c) permits relation back of habeas claims asserted

21

in an amended petition “only when the claims added by amendment

22

arise from the same core facts as the timely filed claims, and not

23

when the new claims depend upon events separate in ‘both time and

24

type’ from the originally raised episodes.” 545 U.S. at 657. In

25

this regard, the reviewing court looks to “the existence of a

26
27

claim

arises

out

of

“the

same

conduct,

transaction

or

Reid does not argue that any other subsection of § 2244(d)(1)
applies in this case.
2

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Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 4 of 17

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common ‘core of operative facts’ uniting the original and newly

2

asserted claims.” A claim that merely adds “a new legal theory

3

tied to the same operative facts as those initially alleged” will

4

relate back and be timely. 545 U.S. at 659 & n.5.

5

The

Ninth

Circuit

has

set

forth

a

two-step

analysis

to

6

determine whether a claim relates: (1) “determine what claims the

7

amended

8

claims”; and (2) “for each claim in the amended petition, ... look

9

to the body of the original petition and its exhibits to see

10

whether the original petition ‘set out’ or ‘attempted to ... set

11

out’

12

15(c)(1)(B)—or whether the claim is instead ‘supported by facts

13

that differ in both time and type from those the original pleading

14

set forth,’ Mayle, 545 U.S. at 650, 664, 125 S. Ct. 2562.” Ross v.

15

Williams, 950 F.3d 1160, 1167–68 (9th Cir. 2020). It is not

16

required that the “facts in the original and amended petitions be

17

stated in the same level of detail.” Id.

a

petition

alleges

corresponding

and

factual

what

core

episode,

facts

see

underlie

Fed.

R.

those

Civ.

P.

18

The parties agree that Reid’s federal petition was filed

19

almost two weeks after the federal statute of limitations expired.

20

However, Reid asserts that he was abandoned by counsel, who never

21

advised him of the conclusion of his direct appeal. He argues he

22

therefore be allowed equitable tolling through the filing of both

23

the original and first amended petitions.

24

Equitable tolling is appropriate only if the petitioner can

25

show that: (1) he has been pursuing his rights diligently, and (2)

26

some extraordinary circumstance stood in his way and prevented

27

timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). “[F]or

28
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Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 5 of 17

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a

2

diligently,’ . . . he must show that he has been reasonably

3

diligent in pursuing his rights not only while an impediment to

4

filing caused by an extraordinary circumstance existed, but before

5

and after as well, up to the time of filing his claim in federal

6

court.” Smith v. Davis, 953 F.3d 582, 598-99 (9th Cir. 2020) (en

7

banc).

8
9
10
11
12
13
14
15

litigant

to

demonstrate

‘he

has

been

pursuing

his

rights

“The diligence required for equitable tolling purposes is
‘reasonable

diligence,’

not

‘maximum

feasible

diligence.’”

Holland, 560 U.S. at 653.
In
determining
whether
reasonable
diligence
was
exercised courts shall consider the petitioner’s overall
level of care and caution in light of his or her
particular circumstances and be guided by decisions made
in other similar cases with awareness of the fact that
specific circumstances, often hard to predict in
advance,
could
warrant
special
treatment
in
an
appropriate case.

16

Smith,

17

omitted).

953

F.3d

at

599

(internal

punctuation

and

citations

18

Equitable tolling is “unavailable in most cases,” Miles v.

19

Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and “the threshold

20

necessary to trigger equitable tolling is very high, lest the

21

exceptions swallow the rule,” Miranda v. Castro, 292 F.3d 1063,

22

1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d

23

1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the

24

burden of proof on this “extraordinary exclusion.” Id. at 1065. He

25

accordingly must demonstrate a causal relationship between the

26

extraordinary circumstance and the lateness of his filing. E.g.,

27

Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant

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5

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 6 of 17

1

v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).

2

“[I]t is only when an extraordinary circumstance prevented a

3

petitioner acting with reasonable diligence from making a timely

4

filing that equitable tolling may be the proper remedy.’” Smith,

5

953 F.3d at 600.

6

Reid was sentenced on December 1, 2015. (ECF No. 45). Judgment

7

of conviction was entered on December 7, 2015, and counsel filed

8

a notice of appeal that same date. (ECF Nos. 47 & 48).

9

On January 12, 2016, Reid sent his attorney, Michael Sanft,

10

a letter that asked for confirmation that his appeal had been filed

11

and for a copy of his appeal and of the sexual assault examination

12

report. 3 (ECF No. 17-2). In the letter, Reid noted that it was his

13

second letter to Sanft, that Sanft had not responded to his first

14

letter and that no one ever answered the phones at Sanft’s office.

15

(Id.) Two weeks later, Reid sent a letter to the state court that

16

explained he had been trying to reach his attorney with no success

17

and requested any help the court might be able to offer in that

18

regard. (ECF No. 17-3).

19

Five months later, on July 2, 2016, Reid sent a letter to an

20

investigator. 4 (ECF No. 17-4). In the letter, Reid explained that

21

he had been trying without success to reach Sanft and asked the

22

investigator if he could send him a copy of the sexual assault

23
24
25
26
27

The respondents have not contested the authenticity of this or
any other item of evidence submitted by the petitioner.
3

Although neither party explains whether the investigator had
worked on Reid’s case or in Sanft’s employ, the contents of the
letter suggest that Reid at least believed the investigator was
either familiar with Reid’s case or familiar enough with Sanft to
be able to contact him.
4

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Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 7 of 17

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exam and advise whether his appeal had been filed. Three weeks

2

later, on July 23, 2016, Reid sent a second letter to the trial

3

court. (ECF No. 17-5). In his letter, Reid again complained of an

4

inability to contact Sanft and asked the trial court for help.

5

(Id.) In each letter, Reid appears unaware his appeal had been

6

decided just a few months before.

7

There is no evidence that anyone – the investigator, Sanft or

8

the state court – responded in any fashion to Reid’s requests for

9

information. In addition, that Reid was unable to contact or obtain

10

any response from Sanft is corroborated by accounts from several

11

of his family members, including two who were also unable to reach

12

Sanft on Reid’s behalf during this time period. (ECF Nos. 49-1,

13

49-2, 49-4, 49-5 & 49-6).

14

Nearly a year after sending his last letter to the state

15

court, Reid moved to withdraw Sanft as counsel on July 17, 2017.

16

(Ex. 65). In his motion, Reid also asked the court to order Sanft

17

to turn over his case file. (Id.) On July 25, 2017, on the advice

18

of another inmate, Reid pulled a copy of his state court docket.

19

It was then, he claims, he finally learned that his appeal had

20

been decided.

21

“[I]f

a

petitioner’s

attorney

‘fail[s]

to

satisfy

22

professional standards of care,’ and if the failure contributes to

23

the untimely filing of a federal petition, the petitioner may be

24

entitled to equitable tolling.” Holland, 560 U.S. at 649. An

25

attorney’s “[f]ailure to inform a client that his case has been

26

decided, particularly where that decision implicates the client’s

27

ability to bring further proceedings and the attorney has committed

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Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 8 of 17

1

himself to informing his client of such a development, constitutes

2

attorney

3

Legrand, 767 F.3d 879, 886 (9th Cir. 2014).

abandonment”

justifying

equitable

tolling.

Gibbs

v.

4

The uncontested evidence before the court is that Sanft, who

5

was acting as Reid’s attorney and was thus receiving notice of

6

court filings on Reid’s behalf, never advised Reid that his appeal

7

had concluded. Reid tried repeatedly to obtain initiate contact

8

with his counsel regarding his appeal with letters to counsel, an

9

investigator, and the trial court -- to no avail. The court

10

therefore concludes Sanft abandoned Reid. That, coupled with the

11

failure of any other person or entity to respond to Reid’s multiple

12

requests for information, was an extraordinary circumstance that

13

prevented the timely filing of Reid’s federal petition.

14

The court further concludes that Reid exercised reasonable

15

diligence before, during and after the extraordinary circumstance

16

prevented timely filing. Reid made several attempts to contact his

17

attorney

18

counsel, a letter to an investigator, and letters to the court. He

19

did not send just one letter, as respondents argue. After receiving

20

no responses during the seven-month period, Reid paused his efforts

21

to obtain information. However, after a year of silence, Reid moved

22

to have counsel withdrawn and his case file turned over and, on

23

advice of another inmate, ran his docket to discover his appeal

24

had been decided. Under the circumstances of this case, and similar

25

to other cases, it was not unreasonable for Reid to wait a year

26

before taking further actions to ascertain the status of his

27

appeal. See, e.g., Fue v. Biter, 842 F.3d 650, 654-55 (9th Cir.

through

multiple

avenues

28
8

–

phone

calls,

letters

to

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 9 of 17

1

2016).

2

Respondents argue that Sanft was not appointed to file a

3

postconviction petition for Reid, but that is beside the point.

4

Saft was responsible for alerting Reid that his appeal had been

5

decided and it was reasonable for Reid to wait for his direct

6

appeal

7

petition, Loveland v. Hatcher, 231 F.3d 640, 644 (9th Cir. 2000)

8

(“If a defendant reasonably believes that his counsel is pursuing

9

his direct appeal he most naturally will not file his own post-

10

conviction relief petition. Indeed, a defendant could seriously

11

prejudice his case if he were to prepare and file a habeas petition

12

while his counsel was pursuing his direct appeal.”), and to wait

13

for his state petition to be filed before filing his federal

14

petition. Thus, it was Sanft’s failure to advise Reid of the status

15

of his appeal that precluded Reid from timely filing his federal

16

habeas petition.

17

Respondents

to

be

decided

also

before

assert

filing

that

his

the

state

state

postconviction

courts’

factual

18

findings, made in connection with Reid’s untimely state petition,

19

are entitled to deference. 5 In affirming the dismissal of Reid’s

20

state court postconviction petition, the Nevada Court of Appeals

21

made the following factual findings:

22

Reid
did
not
allege
that
counsel
affirmatively
misrepresented the status of his appeal. Further, the
record before this court demonstrates Reid knew how to

23
24
25
26
27

The state courts’ legal findings are not entitled to deference
in this context. See Holland v. Florida, 560 U.S. 631, 650 (2010)
(“Equitable tolling . . . asks whether federal courts may excuse
a petitioner’s failure to comply with federal timing rules, an
inquiry that does not implicate a state court’s interpretation of
state law.”).

5

28
9

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 10 of 17

2

request information directly from both the district
court and the appellate court. Reid did not explain his
delay in requesting that information. Based on these
facts, Reid failed to demonstrate cause for the delay.

3

(Ex. 94 at 2). First, the Court of Appeals made no finding that

4

Sanft did not abandon Reid. Second, unaddressed by the Court of

5

Appeals is the significance of the two letters Reid sent directly

6

to the trial court in which he sought assistance contacting his

7

attorney –- letters that also indicated that Reid was completely

8

unaware of, and concerned about, the status of his appeal. Nor did

9

the Court of Appeals address the absence of any evidence that the

10

trial court responded to these letters, either by sending Reid a

11

copy of the order denying his appeal or forwarding his letter to

12

his court-appointed attorney with a directive that he contact his

13

client. This is, in the court’s opinion, the most critical evidence

14

showing Reid exercised reasonable diligence. In sum, as this

15

court’s findings are not at odds with those made by the state

16

courts, the deference due their factual findings does not preclude

17

application of equitable tolling in this case.

1

18

Accordingly, as Reid has met both requirements for equitable

19

tolling,

the

original

petition

--

filed

two

weeks

after

the

20

expiration of the federal statute of limitations -- is deemed

21

timely filed. Having so decided, the next question is whether the

22

claims in the first amended petition may be considered timely

23

filed. 6

24
25
26
27

The second amended petition presents the same claims as those in
the first amended petition. Accordingly, if the first amended
petition is timely, the second amended petition – the operative
petition in this case – is also timely.
6

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10

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 11 of 17

1

Reid argues first that his first amended petition should be

2

subject to equitable tolling on the basis that counsel relied on

3

Ninth Circuit cases endorsing a stop-clock approach to equitable

4

tolling when deciding when to file the amended petition. Although

5

there is Ninth Circuit case law holding that equitable tolling may

6

be granted when a petitioner’s attorney reasonably relies on the

7

unsettled law in deciding when to file his petition, Williams v.

8

Filson, 908 F.3d 546, 559 (9th Cir. 2018), the court need not

9

decide whether this law applies in the context of this case. The

10

claims in the first amended petition may be deemed timely through

11

application

12

principles.

of

relation-back

and

other

equitable

tolling

13

The first amended petition asserts the following claims: (1)

14

Reid’s plea was not knowing and voluntary because (a) he made it

15

without first having seen the victim’s sexual assault examination

16

report

17

likelihood that he would receive probation if he pled; (2) trial

18

counsel was ineffective on the same facts alleged in Ground One;

19

and (3) appellate counsel was ineffective on the same facts as

20

Ground One.

and

(b)

his

attorney

grossly

mischaracterized

the

21

In his original petition, in relevant part, Reid asserts that

22

trial counsel was ineffective because the sexual assault exam

23

report had been withheld but counsel nevertheless failed to request

24

a continuance of trial, which forced Reid into an unfavorable plea.

25

(ECF No. 6 at 5). The core of operative facts supporting this

26

ineffective assistance of counsel claim is that Reid entered his

27

plea without the benefit of the sexual assault examination report,

28
11

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 12 of 17

1

which are the same operative facts underlying his claims that his

2

plea was involuntary because it was made without the report, and

3

that trial and appellate counsel were ineffective for the same

4

reason. See Nguyen v. Curry, 736 F.3d 1287, 1296–97 (9th Cir. 2013)

5

(holding that a claim that appellate counsel was ineffective for

6

failing to raise double jeopardy related back to a timely raised

7

substantive double jeopardy claim), abrogated on other grounds by

8

Davila v. Davis, – U.S. –, 137 S. Ct. 2058 (2017). Accordingly,

9

those parts of Grounds One, Two and Three based on the sexual

10

assault examination report relate back to the original petition

11

and are timely.

12

The operative facts underlying Reid’s claims that counsel

13

ineffectively predicted that Reid would get probation, however,

14

are not to be found in the original petition. While Reid references

15

his motion to withdraw guilty plea, which in turn references (but

16

is not based on) counsel’s estimate that Reid would get probation,

17

this is insufficient for relation back purposes. First, the motion

18

to withdraw is not attached to the petition and is not therefore

19

considered part of the petition. Second, there is no attempt by

20

Reid to incorporate the contents of the motion to withdraw as part

21

of his petition.

22

Three that rely on counsel’s estimation of the likelihood of

23

probation do not relate back to the original petition.

24

However,

Accordingly, those parts of Grounds One, Two and

the

court

is

persuaded

by

Reid’s

alternative

25

argument that equitable tolling should apply through the filing of

26

his first amended petition for at least this claim on the grounds

27

of attorney abandonment and lack of a case file. Under some

28
12

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 13 of 17

1

circumstances, the lack of a case file might justify equitable

2

tolling, see Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th

3

Cir. 2009); Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002),

4

if “the hardship caused by lack of access to [the] materials was

5

an extraordinary circumstance that caused” the untimely filing of

6

the federal petition. See Waldron-Ramsey, 556 F.3d at 1013. Counsel

7

argues, and the respondents do not dispute, that the transcripts

8

for Reid’s change of plea and sentencing were not available until

9

May 2018. The court is further persuaded that the probation claim

10

could not have been ascertained without first reviewing those

11

transcripts. As such, the court concludes that Reid’s claims based

12

on counsel’s advice about probation were not available until May

13

2018 and that counsel acted diligently in preparing and filing the

14

first amended petition asserting that claim less than three months

15

later.

16

In sum, the court concludes that, through application of

17

equitable tolling and relation back, the claims in the first

18

amended petition, and by extension the second amended petition,

19

are timely.

20

III. Procedural Default

21
22

The respondents argue that even if the petition is deemed
timely, all of Reid’s claims are procedurally defaulted.

23

A federal court cannot review a claim “if the Nevada Supreme

24

Court denied relief on the basis of ‘independent and adequate state

25

procedural grounds.’” Koerner v. Grigas, 328 F.3d 1039, 1046 (9th

26

Cir. 2003). In Coleman v. Thompson, the Supreme Court held that a

27

state prisoner who fails to comply with the state’s procedural

28
13

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 14 of 17

1

requirements in presenting his claims is barred from obtaining a

2

writ

3

independent state ground doctrine. Coleman v. Thompson, 501 U.S.

4

722, 731-32 (1991). A state procedural bar is “adequate” if it is

5

“clear, consistently applied, and well-established at the time of

6

the petitioner's purported default.” Calderon v. United States

7

District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996).

8

procedural bar is “independent” if the state court “explicitly

9

invokes the procedural rule as a separate basis for its decision.”

10

Yang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). A state

11

court’s decision is not “independent” if the application of the

12

state’s default rule depends on the consideration of federal law.

13

Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000).

of

habeas

corpus

in

federal

court

by

the

adequate

and

A state

14

The Nevada Court of Appeals affirmed dismissal of Reid’s state

15

postconviction petition on the grounds that it was untimely. The

16

Ninth Circuit has held that the Nevada Supreme Court’s application

17

of the timeliness rule in § 34.726(1) is an independent and

18

adequate

19

McDaniel, 80 F.3d 1261, 1268–70 (9th Cir. 1996); see also Valerio

20

v. Crawford, 306 F.3d 742, 778 (9th Cir. 2002). Accordingly, Reid’s

21

claims are procedurally defaulted.

state

law

ground

for

procedural

default.

Moran

v.

22

A procedural default may be excused only if “a constitutional

23

violation has probably resulted in the conviction of one who is

24

actually innocent,” or if the prisoner demonstrates cause for the

25

default and prejudice resulting from it.

26

U.S. 478, 496 (1986).

27
28
14

Murray v. Carrier, 477

Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 15 of 17

1

To demonstrate cause for a procedural default, the petitioner

2

must “show that some objective factor external to the defense

3

impeded” his efforts to comply with the state procedural rule.

4

Murray,

5

impediment must have prevented the petitioner from raising the

6

claim.

477

U.S.

at

488.

For

cause

to

exist,

the

external

See McCleskey v. Zant, 499 U.S. 467, 497 (1991).

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With respect to the prejudice prong, the petitioner bears

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“the burden of showing not merely that the errors [complained of]

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constituted a possibility of prejudice, but that they worked to

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his actual and substantial disadvantage, infecting his entire

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[proceeding] with errors of constitutional dimension.”

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Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v.

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Frady, 456 U.S. 152, 170 (1982)).

White v.

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Reid asserts that the abandonment of counsel discussed above

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constitutes cause for the default of his claims. In Maples v.

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Thomas, 565 U.S. 266, 271, 289 (2012), the Supreme Court held that

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abandonment by counsel at a critical time for the petitioner’s

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state postconviction petition can constitute cause to excuse a

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procedural default. As the court has already found, the evidence

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before the court supports the conclusion that Reid was abandoned

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by Sanft at a time critical to his state postconviction petition,

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i.e., during the time period in which he could have filed a timely

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state postconviction petition in order to properly exhaust his

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federal claims. Sanft not only failed to advise Reid that his

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appeal had been decided, he utterly failed to respond to multiple

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attempts by Reid to contact him about the status of his case. This

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amounted to abandonment in the circumstances of this case and

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Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 16 of 17

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therefore constitutes cause for the procedural default of Reid’s

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claims. 7

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Whether Reid has suffered prejudice as a result, however, is

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a question that is inextricably intertwined with the merits of

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Reid’s claims. The court will therefore defer a determination of

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whether Reid has suffered prejudice until the time of merits

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consideration.

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IV. Conclusion

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In accordance with the foregoing, IT IS THEREFORE ORDERED
that the respondents’ motion to dismiss (ECF No. 36) is DENIED.

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IT IS FURTHER ORDERED that respondents shall file an answer

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to the second amended petition within sixty days of the date of

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this order. In filing the answer, respondents must comply with the

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requirements of Rule 5 of the Rules Governing Section 2254 Cases

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in the United States District Courts and shall specifically cite

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to and address the applicable state court written decision and

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state court record materials, if any, regarding each claim within

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the response as to that claim.

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/

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/

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/

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/

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The respondents’ argument that the court must defer to the state
courts’ finding that no cause existed for the untimely filing of
the state petition is without merit. “[T]he question whether a
petitioner’s procedural default is excused by cause and prejudice
for purposes of federal habeas review is a federal, not state,
question.” Visciotti v. Martel, 862 F.3d 749, 768 n.10 (9th Cir.
2016).
7

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Case 3:17-cv-00532-HDM-CLB Document 55 Filed 03/22/21 Page 17 of 17

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IT IS FURTHER ORDERED that Reid will have sixty days from
service of the answer within which to file a reply.

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IT IS SO ORDERED.

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DATED this 22nd day of March, 2021.

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____
UNITED STATES DISTRICT JUDGE

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