Rimer v. Baker et al

Filing 57

ORDER - Respondents' Motion to Dismiss (ECF No. 27 ) is denied. The Court holds that Ground 1 is actually unexhausted, but is technically exhausted because it would be procedurally barred by the state courts. The Court defers con sideration of whether Petitioner can demonstrate cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), to overcome the procedural default of Ground 1 until after the filing of an answer and reply in this action. Within 45 days of entry of this order, Respondents must file an answer addressing all claims in the Amended Petition (ECF No. 17 ) on the merits, under a de novo standard of review as to Ground 1, and also addressing whether Ground 1 is barred by procedural default under federal law. Petitioner shall have 45 days from service of the answer within which to file a reply. Signed by Chief Judge Miranda M. Du on 2/17/2021. (Copies have been distributed pursuant to the NEF - AB)

Case 3:18-cv-00023-MMD-WGC Document 57 Filed 02/17/21 Page 1 of 4

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

STANLEY RIMER,

Case No. 3:18-cv-00023-MMD-WGC
Petitioner,

7

ORDER

v.
8
RENEE BAKER, et al.,
9
Respondents.
10
11

I.

SUMMARY

12

This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the Court

13

is Respondents' motion to dismiss (ECF No. 27) Petitioner Stanley Rimer’s first amended

14

petition (ECF No. 17).1 The Court finds that Ground 1 of the first amended petition is

15

unexhausted but technically exhausted because it would be procedurally barred in the

16

state courts. The Court defers consideration whether Rimer can overcome the procedural

17

default under Martinez v. Ryan, 566 U.S. 1 (2012), until after the parties have filed the

18

answer and reply to the petition. The Court thus denies the motion to dismiss.

19

II.

BACKGROUND

20

Petitioner was charged in state district court with second-degree murder (count 1),

21

and child abuse or neglect (counts 2-7). (ECF No. 18-2.) After a jury trial, Petitioner was

22

found guilty of one count of involuntary manslaughter, as a lesser-included offense of

23

second-degree murder, and the six counts of felony child abuse or neglect. (ECF No. 18-

24

3.) Petitioner appealed, and the Nevada Supreme Court affirmed. (ECF No. 18-7.)

25

Petitioner then filed a post-conviction habeas corpus petition in the state district court pro

26
27
28

1Petitioner

filed an opposition (ECF No. 43), and Respondents replied (ECF No. 56).

Case 3:18-cv-00023-MMD-WGC Document 57 Filed 02/17/21 Page 2 of 4

1

se. (ECF No. 33-32.) The state district court denied the petition. (ECF Nos. 18-8, 18-9.)

2

Petitioner appealed, and the Nevada Supreme Court affirmed. (ECF No. 18-12.)

3

Petitioner filed this federal petition for writ of habeas corpus on January 1, 2018.

4

(ECF No. 9.) After the Court appointed counsel for Petitioner, he filed a counseled, first-

5

amended petition raising seven grounds for relief. (ECF No. 17.) Respondents move to

6

dismiss the first amended petition because Ground 1—Petitioner’s claim that he was

7

subject to ineffective assistance of counsel in violation of his Sixth Amendment rights—is

8

unexhausted. (ECF No. 27 at 5.)

9

III.

LEGAL STANDARD

10

Before a federal court may consider a petition for a writ of habeas corpus, the

11

petitioner must exhaust the remedies available in state court. See 28 U.S.C. § 2254(b).

12

To exhaust a ground for relief, a petitioner must fairly present that ground to the state's

13

highest court, describing the operative facts and legal theory, and give that court the

14

opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365

15

(1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982). However, when no state

16

remedies are available, even when the remedy is no longer available based on the

17

petitioner’s failure to seek state court review in a timely manner, the ‘technical exhaustion’

18

doctrine may deem the ground exhausted. See Woodford v. Ngo, 548 U.S. 81 92-93

19

(2006); see also Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (finding “a habeas

20

petitioner who has defaulted his federal claims in state court meets the technical

21

requirements for exhaustion; there are no state remedies any longer available to him”).

22

IV.

DISCUSSION

23

Ground 1 of the first amended petition contains five claims of ineffective assistance

24

of trial counsel. All claims relate to counts three to seven involving child abuse or neglect.

25

The subject of each of these counts is one of Petitioner’s then-minor children: J.R.,2 S.R.,

26

E.R., Q.R., and A.R., respectively. Petitioner admits that he did not present these claims

27
28

2J.R.

was also the subject of count one (second-degree murder) and count two
(child abuse or neglect).
2

Case 3:18-cv-00023-MMD-WGC Document 57 Filed 02/17/21 Page 3 of 4

1

to the state courts. (ECF No. 17 at 20.) Respondents argue that Petitioner has not

2

exhausted Ground 1.

3

Petitioner argues that Ground 1 is technically exhausted. If he went to the state

4

courts to exhaust the claims in Ground 1, the state courts would find his post-conviction

5

habeas corpus petition to be procedurally barred as untimely under NRS 34.726(1) and

6

successive under NRS 34.810(2). (ECF No. 43 at 4.) When he ultimately returned to this

7

Court, Petitioner argues, Ground 1 would be barred by procedurally default. (Id.) Petitioner

8

then argues that he can overcome the default by showing cause and prejudice under

9

Martinez v. Ryan. See 566 U.S. 1 (2012). Martinez held that a person can show cause

10

and prejudice to overcome the procedural default of a claim of ineffective assistance of

11

trial counsel by meeting the following elements:

15

[W]here (1) the claim of "ineffective assistance of trial counsel" was a
"substantial" claim; (2) the "cause" consisted of there being "no counsel" or
only "ineffective" counsel during the state collateral review proceeding; (3)
the state collateral review proceeding was the "initial" review proceeding in
respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state
law requires that an "ineffective assistance of trial counsel [claim] . . . be
raised in an initial-review collateral proceeding."

16

Trevino v. Thaler, 569 U.S. 413, 423 (2013). Nevada has not adopted Martinez for claims

17

of ineffective assistance of trial counsel that are procedurally barred under state law. See

18

Brown v. McDaniel, 331 P.3d 867 (Nev. 2014). Implicit in Petitioner’s argument is that he

19

has no other viable arguments for cause and prejudice that he can raise with the state

20

courts. Given that the only unexhausted claims are for ineffective assistance of trial

21

counsel, the Court accepts that Petitioner’s only argument for cause and prejudice is

22

Martinez.

12
13
14

23

Petitioner has arguably met three of the elements of Martinez. First, he had no

24

counsel during his state post-conviction habeas corpus proceedings. Second, his state

25

post-conviction petition was the initial proceeding regarding claims of ineffective

26

assistance of trial counsel. Third, Nevada law requires that a claim of ineffective

27

assistance of trial counsel be raised in a post-conviction habeas corpus petition. See

28

Gibbons v. State, 634 P.2d 1214 (Nev. 1981).
3

Case 3:18-cv-00023-MMD-WGC Document 57 Filed 02/17/21 Page 4 of 4

1

Regarding the fourth element of Martinez, whether the claims of ineffective

2

assistance of trial counsel are substantial, Respondents in their reply ask the Court to

3

defer the Martinez analysis until after they file their answer because that analysis is

4

intertwined with the merits of the claims. (ECF No. 56 at 6.) The Court agrees, preferring

5

to address the matter in the same manner that it often does when a claim of cause and

6

prejudice is based upon an independent claim of constitutionally ineffective assistance of

7

either trial or appellate counsel. In such circumstances, the Court often defers a resolution

8

of the cause-and-prejudice analysis until after the filing of an answer and reply contingently

9

addressing the claims also on the merits, so that the Court may have the benefit in its

10

analysis of a full factual and legal presentation as to all relevant claims. That is the

11

procedure that the Court will follow herein.

12

V.

CONCLUSION

13

It therefore is ordered that respondents' motion to dismiss (ECF No. 27) is denied.

14

The Court holds that Ground 1 is actually unexhausted, but is technically exhausted

15

because it would be procedurally barred by the state courts.

16

It further is ordered that the Court defers consideration of whether petitioner can

17

demonstrate cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), to overcome

18

the procedural default of Ground 1 until after the filing of an answer and reply in this action.

19

It further is ordered that, within 45 days of entry of this order, respondents must file

20

an answer addressing all claims in the amended petition on the merits, under a de novo

21

standard of review as to Ground 1, and also addressing whether Ground 1 is barred by

22

procedural default under federal law.

23
24
25

It further is ordered that petitioner shall have 45 days from service of the answer
within which to file a reply.
DATED THIS 17th Day of February 2021.

26
27
28

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE
4