Palmer v. Filson et al

Filing 68

ORDER - IT IS THEREFORE ORDERED that Respondents motion to dismiss (ECF No. 61 ) is GRANTED IN PART AND DENIED IN PART as detailed herein. It IS FURTHER ORDERED that Respondents' motions for enlargement of time to file a reply in suppor t of the motion to dismiss second amended petition (ECF Nos. 64 and 65 ) are granted nunc pro tunc to May 31, 2022, and the reply in support of motion to dismiss the second amended petition (ECF No. 67 ) is deemed timely filed. IT IS FURTHER IS ORDERED that Respondents will have 120 days from the date of this order to file an answer or otherwise respond to Palmer's remaining claims in the second amended petition (ECF No. 58 ) (12/23/2022). In all other respe cts, the schedule for further proceedings set forth in the scheduling order entered May 14, 2021 (ECF No. 54 ) will remain in effect. IT IS FURTHER ORDERED that the Clerk of the Court is directed to substitute Tim Garrett for Respondent William Gittere. Signed by Judge Howard D. McKibben on 8/25/2022. (Copies have been distributed pursuant to the NEF - CJD) Modified on 8/25/2022 (CJD).

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 1 of 17

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

MARKIECE PALMER,

6

Petitioner,

7
8
9

ORDER

v.
TIM GARRETT, 1 et al.,
Respondents.

10
11

Case No. 3:18-cv-00245-HDM-CLB

I.

Summary

12

This is a habeas matter under 28 U.S.C. § 2254. Before the

13

Court is respondents’ motion to dismiss the second amended petition

14

(“petition”) as mixed claiming Grounds 5(B)–5(F) and 6–10 were not

15

fairly presented to the state courts, or alternatively to dismiss

16

those grounds as procedurally defaulted. (ECF No. 61.) The motion

17

is granted in part and denied in part.

18

II.

Procedural Background

19

A jury convicted Palmer of one count of murder and two counts

20

of child abuse, neglect, or endangerment with substantial bodily

21

harm, for the death of seven-year-old R.J. (ECF No. 20-5.) Palmer

22

was sentenced to life without the possibility of parole. (ECF No.

23

20-7.) Palmer timely appealed and the Nevada Supreme Court affirmed

24

the convictions. (ECF Nos. 24-1; 24-4.)

25
26
27
28

According to the state corrections department’s inmate locator page,
Palmer is incarcerated at Lovelock Correctional Center. The department’s website
reflects
that
Tim
Garrett
is
the
warden
for
that
facility.
https://doc.nv.gov/Facilities/LCC Facility/. The Court will therefore direct
the clerk to substitute Tim Garrett for respondent William Gittere, under, inter
alia, Rule 25(d) of the Federal Rules of Civil Procedure.
1

1

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 2 of 17

1

Palmer thereafter filed two pro se motions alleging, among

2

other things, that trial counsel failed to suppress Palmer’s

3

statement to police as a violation of Miranda. 2 (ECF Nos. 21-4;

4

21-5.)

5

postconviction petition for writ of habeas corpus and denied all

6

claims. (ECF No. 38-19.) Palmer appealed and the Nevada Supreme

7

Court affirmed the state district court’s denial of relief for the

8

claims that Palmer had raised in the state district court but

9

declined to consider five additional claims Palmer raised for the

10

The

state

district

court

construed

the

motions

as

a

first time on appeal. (ECF No. 24-6.)

11

Palmer filed a pro se federal habeas corpus petition and an

12

amended petition. (ECF Nos. 7; 19.) Respondents moved to dismiss

13

the amended petition and Palmer moved to stay this action while he

14

exhausted in the state courts a claim that he newly alleged in the

15

amended petition. (ECF Nos. 30; 45; 47.) The Court granted a stay,

16

granted leave to refile, and denied Respondents’ motion to dismiss

17

without prejudice. (ECF No. 49.)

18

The state district court dismissed Palmer’s second state

19

postconviction petition for writ of habeas corpus as untimely and

20

successive. (ECF No. 46-5.) Palmer appealed and the Nevada Supreme

21

Court affirmed finding the second postconviction petition was

22

procedurally barred as untimely and successive, and constituted an

23

abuse of the writ to the extent that Palmer failed to demonstrate

24

cause and prejudice to overcome the default of his claims. (ECF

25

No. 52-2.)

26

///

27
28

2

Miranda v. Arizona, 384 U.S. 436 (1966).

2

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 3 of 17

The Court granted Palmer’s request to reopen his federal case

1
2

and Palmer filed a second amended petition. (ECF Nos. 54; 58.)

3

III. Legal Standards

4

Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner must

5

exhaust state court remedies on a claim before presenting that

6

claim to a federal court. The exhaustion requirement ensures the

7

state courts, as a matter of federal-state comity, have the first

8

opportunity to pass upon and correct alleged violations of federal

9

constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722,

10

731 (1991). “A petitioner has exhausted his federal claims when he

11

has fully and fairly presented them to the state courts.” Woods v.

12

Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan

13

v. Boerckel, 526 U.S. 838, 848–49 (1999) (“Section 2254(c) requires

14

only that state prisoners give state courts a fair opportunity to

15

act on their claims.”)).

16

The

Supreme

17

circumstances

18

anticipate the state-law procedural bar of an unexhausted claim,

19

and to treat such a claim as subject to the procedural default

20

doctrine. A federal court need not dismiss an exhausted claim if

21

it is clear that the state court would find the claim procedurally

22

barred. Coleman, 501 U.S. at 731 (“An unexhausted claim will be

23

procedurally defaulted, if state procedural rules would now bar

24

the petitioner from bringing the claim in state court.”); see also

25

Castille v. Peoples, 489 U.S. 346, 351–52 (1989); Dickens v. Ryan,

26

740 F.3d 1302, 1317 (9th Cir. 2014); Sandgathe v. Maass, 314 F.3d

27

371, 376 (9th Cir. 2002).

28

///

it

Court
may

be

has

recognized

appropriate

3

for

that
a

under

federal

certain
court

to

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 4 of 17

1

Where a petitioner “has defaulted his federal claims in state

2

court pursuant to an independent and adequate state procedural

3

rule,” federal habeas corpus review “is barred unless the prisoner

4

can demonstrate cause for the default and actual prejudice as a

5

result of the alleged violation of federal law or demonstrate that

6

failure

7

miscarriage of justice.” Coleman, 501 U.S. at 750. To demonstrate

8

cause, the petitioner must establish some external and objective

9

factor impeded efforts to comply with the state’s procedural rule.

10

E.g., Maples v. Thomas, 565 U.S. 266, 280, 289 (2012) (finding

11

cause to excuse procedural default due to attorney abandonment but

12

remanding for a determination of prejudice); McCleskey v. Zant,

13

499 U.S. 467, 497 (1991) (holding that for cause to exist, the

14

external

15

raising the claim). “[T]o establish prejudice, [a petitioner] must

16

show not merely a substantial federal claim, such that ‘the errors

17

. . . at trial created a possibility of prejudice,’ but rather

18

that

19

substantial disadvantage.’” Shinn v. Ramirez, 142 S. Ct. 1718,

20

1732 (2022) (citing Murray v. Carrier, 477 U.S. 478, 494 (1986)

21

(quoting United

22

(emphasis in original).

to

the

consider

impediment

the

claims

must

constitutional

States

have

will

prevented

violation

v.

result

Frady,

the

‘worked

456

in

U.S.

to

a

fundamental

petitioner

his

152,

actual

170

from

and

(1982))

23

With one exception, Nevada’s cause and prejudice standards

24

are functionally identical to the federal standards for cause and

25

prejudice. Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir.

26

2004); Mitchell v. State, 122 Nev. 1269, 1273–74, 149 P.3d 33, 35–

27

36 (2006). That exception is for a procedurally defaulted claim of

28

ineffective assistance of trial counsel when the cause for the
4

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 5 of 17

1

default is the ineffective assistance or absence of postconviction

2

counsel in the initial postconviction proceedings in accordance

3

with Martinez v. Ryan, 566 U.S. 1 (2012). Brown v. McDaniel, 130

4

Nev. 565, 571–76, 331 P.3d 867, 871–75 (2014). A Nevada federal

5

habeas petitioner who relies on Martinez—and only Martinez—as a

6

basis for overcoming a state procedural bar can successfully argue

7

that the state courts would hold the claim procedurally barred,

8

but that he nonetheless has a potentially viable argument for cause

9

and prejudice under federal law.

10

According to the Supreme Court, the necessary circumstances

11

for establishing “cause” to excuse a procedural default of an

12

ineffective assistance of trial counsel claim are:

13

[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 initialreview collateral proceeding.”

14
15
16
17
18
19

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566

20

U.S. at 18–19). To show a claim is “substantial,” a petitioner

21

must demonstrate it has “some merit.” Martinez, 566 U.S. at 14. A

22

claim is “insubstantial” if “it does not have any merit or ... is

23

wholly without factual support.” Id. at 16.

24

IV.

Discussion

25

A.

Grounds 5(B)–5(F)

26

Grounds

5(B)–5(F)

allege

ineffective

assistance

of

trial

27

counsel. (ECF No. 58 at 27–36.) Respondents contend these grounds

28

were not fairly presented to the state courts and are procedurally
5

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 6 of 17

1

defaulted. (ECF No. 61 at 7–9.) Palmer concedes those grounds were

2

not fairly presented to the state courts but requests the Court

3

find the claims technically exhausted and therefore procedurally

4

defaulted because a state court petition raising the claims at

5

this juncture would be dismissed as procedurally barred. (ECF No.

6

63

7

ineffective assistance of counsel claims alleged in Grounds 5(B)–

8

5(F)

9

Palmer

at

2–4.)
are

Palmer

further

substantial,

can

overcome
of

or

requests

the

alternatively,

procedural

default

merits

the

the

of

Court

determine

defer

ruling

under

Martinez

petition.

(Id.

at

the

whether
until

10

consideration

4–13.)

11

Respondents concede Palmer may rely on Martinez to overcome the

12

procedural default and requests the Court defer the analysis

13

whether Palmer can overcome the default until review of the merits

14

of the petition. (ECF No. 67 at 3.)

15

In light of the rulings of the state courts in Palmer’s second

16

state habeas action, it is clear that Palmer would face multiple

17

procedural bars if he were to return to state court with his

18

unexhausted claims in Grounds 5(B)–5(F). See, e.g., NRS §§ 34.726;

19

34.810. As discussed, the Court may consider those unexhausted

20

claims technically exhausted, but subject to procedural default.

21

See Dickens, 740 F.3d at 1317; see also supra, pp. 3–5.

22

Because Palmer advances only Martinez as a basis for excusing

23

the anticipatory default of his ineffective assistance of trial

24

counsel claims in Grounds 5(B)–5(F), the Court reads Palmer’s

25

opposition as a concession that the only basis for cause as to any

26

of those claims is Martinez. (ECF No. 63 at 4–13.) On that basis,

27

the

28

technically exhausted but procedurally defaulted.

Court

grants

the

request

to

6

consider

Grounds

5(B)–5(F)

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 7 of 17

1

Nevada law requires prisoners to raise ineffective assistance

2

of counsel claims for the first time in a state petition seeking

3

postconviction review, which is the initial collateral review

4

proceeding for purposes of applying the Martinez rule. See Rodney

5

v. Filson, 916 F.3d 1254, 1259–60 (9th Cir. 2019). And it appears

6

Palmer was unrepresented for his initial review collateral review

7

proceeding. (ECF Nos. 21-4; 21-5; 22-1.) Thus, it appears Palmer

8

can meet three of the four Martinez requirements for cause to

9

overcome his procedural default. However, the Court determines

10

that the remaining issues concerning the procedural defaults of

11

Grounds 5(B) –5(F) are intertwined with the merits of those claims,

12

such that they will be better addressed in conjunction with the

13

merits of Palmer’s petition, after Respondents file an answer and

14

Palmer files a reply.

15

The Court will deny the motion to dismiss as to Grounds 5(B)–

16

5(F) without prejudice to Respondents asserting the procedural

17

default defense to the claims in their answer.

18

B.

Ground 6

19

Respondents contend the allegations of ineffective assistance

20

of appellate counsel in Ground 6 were not fairly presented to the

21

state courts and are procedurally defaulted. (ECF No. 61 at 7–9.)

22

Palmer admits Ground 6 is procedurally defaulted and he cannot

23

overcome the default. (ECF No. 63 at 13–14.) Respondents note that

24

Palmer does not identify an alternative basis to overcome the

25

default. (ECF No. 67 at 3.)

26

Palmer does not make any showing of cause and prejudice

27

relative to the procedural default of this claim, or any other

28

showing that excuses the procedural default. And, the Supreme Court
7

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 8 of 17

1

has emphasized that Martinez’s equitable exception is limited to

2

claims of ineffective assistance of trial counsel and expressly

3

declined to expand the narrow exception to claims of ineffective

4

assistance of appellate counsel. Davila v. Davis, 137 S. Ct. 2058,

5

2065–66 (2017).
The Court will thus grant the motion to dismiss Ground 6 as

6
7

it is procedurally defaulted.

8

C.

Ground 7

9

Ground 7 alleges a substantive claim that Palmer’s statements

10

were

11

Respondents contend Ground 7 was not fairly presented to the state

12

courts and is procedurally defaulted. (ECF No. 61 at 7–9.) Palmer

13

concedes Ground 7 was not fairly presented to the state courts but

14

contends his fully exhausted claim in Ground 5(A) (that trial

15

counsel was ineffective in failing to move to suppress Palmer’s

16

statement as obtained in violation of Miranda, which the state

17

courts

18

proceedings) can provide cause to excuse the default of Ground 7.

19

(ECF Nos. 58 at 39; 63 at 14–16; see also ECF No. 24-6 at 4–5.)

20

obtained

In

in

rejected

certain

violation

in

of

Miranda.

Palmer’s

initial

circumstances,

(ECF

No.

58

postconviction

counsel’s

at

39.)

relief

ineffectiveness

in

21

failing to properly preserve a habeas claim for review in state

22

court will suffice as cause to excuse a procedural default. Edwards

23

v. Carpenter, 529 U.S. 446, 450–51 (2000) (citing Carrier, 477

24

U.S. at 488–89). “Not just any deficiency in counsel’s performance

25

will do, however; the assistance must have been so ineffective as

26

to violate the Federal Constitution.” Id.

27

For Palmer to establish cause to overcome the procedural

28

default of Ground 7, he must first demonstrate that trial counsel’s
8

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 9 of 17

1

performance in failing to move to suppress Palmer’s statements as

2

a

3

constitutionally ineffective under Strickland v. Washington, 466

4

U.S. 668 (1984). If he does so, then counsel’s ineffectiveness, as

5

alleged in Ground 5(A), may be used as cause to set aside the

6

procedural default for corresponding claims in Ground 7.

violation

of

(as

Miranda

alleged

in

Ground

5(A))

was

7

Respondents concede Ground 5(A) is properly exhausted and

8

Palmer may rely upon trial counsel’s ineffective assistance as

9

alleged in Ground 5(A) as cause to overcome the procedural default

10

of Ground 7. (ECF No. 67 at 4.) Respondents request the Court defer

11

consideration of Ground 7 until review of the merits of Ground

12

5(A) because the question of prejudice is directly intertwined

13

with the merits of Grounds 5(A) and 7. (Id.)

14

The Court agrees that the question whether Palmer can overcome

15

the procedural default of Ground 7 is intertwined with the merits

16

of

17

conjunction

18

Respondents file an answer and Palmer files a reply.

Ground

5(A),

such

with

that

the

Ground

merits

7

of

is

better

Palmer’s

addressed

petition,

in

after

Thus, the Court will deny the motion to dismiss as to ground

19
20

7

without

prejudice

to

Respondents

asserting

21

default defense to the claim in the answer.

the

procedural

22

D.

Grounds 8 and 9

23

Ground 8 alleges jury instructions 12 and 13 violated federal

24

due process and Ground 5(C) is a procedurally defaulted claim that

25

trial counsel was ineffective in failing to challenge those jury

26

instructions. (ECF No. 58 at 28–32, 39–40.) Likewise, Ground 9

27

alleges

28

instrument and jury instruction 3 violated federal due process and

the

felony

murder

theory

9

contained

in

the

charging

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 10 of 17

1

Ground 5(D) is a procedurally defaulted claim that trial counsel

2

was ineffective in failing to challenge the felony murder theory

3

contained in the information and jury instruction No. 3. (Id. at

4

32–33, 40.)

5

Respondents contend Grounds 8 and 9 were not fairly presented

6

to the state courts and are procedurally defaulted. (ECF No. 61 at

7

7–9.) Palmer concedes Grounds 8 and 9 were not fairly presented to

8

the state courts and are procedurally defaulted. (ECF No. 58 at

9

39–40.) Palmer, however, asserts he can establish cause to overcome

10

the procedural default for Grounds 8 and 9 if he overcomes the

11

procedural default for his corresponding ineffective-assistance-

12

of-counsel claims in Grounds 5(C) and 5(D). (ECF No. 63 at 16–19.)

13

As noted above, ineffective assistance of counsel can, if

14

independently pleaded and proved, establish cause for a default of

15

a

16

corresponding ineffective assistance of counsel claim is also

17

defaulted, a petitioner must demonstrate cause and prejudice to

18

overcome

19

Therefore, should Palmer overcome the procedural default of his

20

ineffective assistance of counsel claims in Ground 5(C)), and also

21

as

22

performance was constitutionally ineffective under Strickland as

23

alleged in Ground 5(C), then counsel’s ineffective assistance may

24

provide cause to aside the procedural default for a corresponding

25

substantive claim in Ground 8. Likewise for Grounds 5(D) and 9.

26

habeas

claim.

the

Carpenter,

procedural

instructed

in

529

default

Carpenter,

U.S.

of

at

that

451,

453.

claim

demonstrate

as

trial

Where

well.

the

Id.

counsel’s

Respondents counter that Palmer’s approach disregards the

27

rationale

of

28

exception to the procedural default doctrine applicable to only a

Martinez

and

Davila,

10

which

proscribe

a

narrow

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 11 of 17

1

single claim of ineffective assistance of trial counsel. (ECF No.

2

67

3

Respondents’ argument lacks merit. Respondents are correct that

4

Martinez excuses the procedural default of a single claim of

5

ineffective

6

procedural

7

However,

8

assistance of counsel claim is overcome under Martinez, and the

9

petitioner also proves counsel was constitutionally ineffective as

10

alleged in that ineffective assistance of counsel claim, then

11

according to Carpenter, counsel’s constitutionally ineffective

12

assistance may supply cause to overcome the procedural default of

13

a corresponding substantive habeas claim. Carpenter, 529 U.S. at

14

452–53. Respondent’s reliance on Davila is also misplaced. Davila

15

held that Martinez did not extend to procedurally defaulted claims

16

of ineffective assistance of appellate counsel; it did not purport

17

to overturn or limit Carpenter.

at

4–5.)

(quoting

assistance
default

assuming

of
the

Davila,

of

137

counsel

the

S.

and

Ct.

does

corresponding

procedural

default

at

2062,

not

overcome

substantive
of

the

2066.)

the

claim.

ineffective

18

The Court agrees with the parties that the issues surrounding

19

the procedural default of Grounds 8 and 9 are intertwined with the

20

procedural default and merits of the claims in Grounds 5(C) and

21

5(D), such that Grounds 8 and 9 are better addressed in conjunction

22

with the merits of Palmer’s petition, after Respondents file an

23

answer and Palmer files a reply. Therefore, the Court will deny

24

the motion to dismiss as to Grounds 8 and 9 without prejudice to

25

Respondents asserting the procedural default defense to the claim

26

in either answer.

27

///

28

///
11

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 12 of 17

1

E.

2

Ground 10 alleges trial counsel violated Palmer’s “autonomy
to

Ground 10

3

right

control

his

4

Fourteenth Amendments by conceding Palmer’s guilt for child abuse

5

without Palmer’s knowing and voluntary consent, in violation of

6

McCoy v. Louisiana, 138 S. Ct. 1500 (2018). (ECF No. 58 at 40–42.)

7

Respondents claim Ground 10 was not fairly presented to the

8

state courts, is unexhausted, and is procedurally defaulted. (ECF

9

Nos. 61 at 7–9, nn.4 & 6; 65 at 7–8.) Palmer contends Ground 10

10

was fairly presented as it was actually exhausted in his second

11

postconviction

12

defense is unavailable to the State because the Nevada Supreme

13

Court’s rejection on state procedural grounds was not independent

14

of, but was instead interwoven with, federal law. (ECF No. 63 at

15

22–25.) Respondents reply that the Nevada Supreme Court expressly

16

relied on independent and adequate state procedural rules NRS §

17

34.726(1) (untimely) and NRS § 34.810 (successive) to bar relief

18

for the claim and only discussed the merits of the claim in

19

determining whether there was cause to overcome the procedural

20

bars. (ECF No. 67 at 7–8.)

relief

defense”

under

proceedings 3

and

the

the

Fifth,

Sixth,

procedural

and

default

21

“In a habeas corpus proceeding, a federal court generally

22

‘will not review a question of federal law decided by a state court

23

if the decision of that court rests on a state law ground that is

24

independent of the federal question and adequate to support he

25

judgment.’” McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir. 1995)

26
27
28

Palmer acknowledges the second amended petition states that he did not fairly
present this claim to the state courts, however, he contends that is a
scrivener’s error, as the claim was raised in his second state postconviction
petition. (ECF No. 63 at 22 n.3.)
3

12

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 13 of 17

1

(quoting Coleman, 501 U.S. at 727–31). A state procedural bar is

2

“independent” if the state court “explicitly invokes a state

3

procedural bar rule as separate basis for its decision.” Id.

4

A state court’s decision is not independent, however, if the

5

application

of

the

6

consideration of federal law. Coleman, 501 U.S. at 735 (federal

7

courts on habeas corpus review of state prisoner claims will

8

presume there is no independent state ground for a state court

9

decision where it fairly appears to rest primarily on federal law,

10

or to be interwoven with federal law); Park v. California, 202

11

F.3d 1146, 1152–53 (9th Cir. 2000). “A state law ground is so

12

interwoven if ‘the state has made application of the procedural

13

bar depend on an antecedent ruling on federal law [such as] the

14

determination of whether federal constitutional error has been

15

committed.’” Park, 202 F.3d at 1152 (quoting Ake v. Oklahoma, 470

16

U.S. 68, 75 (1985)). Under established Ninth Circuit law, a state

17

court’s

18

become interwoven with and dependent upon an antecedent federal

19

constitutional ruling where the state court discusses the merits

20

solely to determine whether the petitioner can establish cause and

21

prejudice to overcome the procedural default. Moran v. McDaniel,

22

80 F.3d 1261, 1269 (9th Cir. 1996).

application

state’s

of

a

default

state

rule

procedural

depends

bar

on

does

the

not

23

Here, Palmer returned to state court during a stay of this

24

action to file a (second) postconviction petition claiming trial

25

counsel’s concession of guilt without Palmer’s informed consent

26

violated Palmer’s “rights to secured autonomy” under the Fifth,

27

Sixth, and Fourteenth Amendments as discussed in McCoy. (ECF No.

28

46-1 at 12–14.) The state district court denied relief finding the
13

Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 14 of 17

1

second petition procedurally barred. (ECF No. 46-5 at 5–7.) Palmer

2

appealed and the Nevada Supreme Court affirmed ruling:

3
4
5
6
7
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[A]ppellant filed his petition on May 10, 2019,
more than one year after this court issued its remittitur
on direct appeal on February 20, 2018. See Palmer v.
State, Docket No. 67565 (Order of Affirmance, January
25, 2018). Thus, appellant’s petition was untimely
filed. See NRS 34.726(1). Moreover, appellant’s petition
was successive because he had previously litigated a
postconviction petition for a writ of habeas corpus on
the merits, and it constituted an abuse of the writ to
the extent that he raised claims new and different from
those raised in his previous petition. See NRS
34.810(1)(b)(2); NRS 34.810(2); see also Palmer v.
State, Docket No. 70970 (Order of Affirmance, March 15,
2018). Appellant’s petition was procedurally barred
absent a demonstration of good cause and actual
prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS
34.810(3). Good cause may be demonstrated by a showing
that the factual or legal basis for a claim was not
reasonably available to be raised in a timely petition.
Hathaway v. State, 119 Nev. 248, 252, 71 P.3d 503, 506
(2003). Based upon our review of the record on appeal,
we conclude that the district court did not err in
denying the petition as procedurally barred for the
reasons discussed below.
Appellant argues that McCoy v. Louisiana, 138 S.
Ct. 1500 (2018), provides good cause because his trial
counsel conceded his guilt without his informed consent.
He is mistaken, as McCoy is distinguishable. McCoy held
that an attorney may not concede a defendant’s guilt of
a charged crime over a defendant’s express objection.
138 S. Ct. at 1509. McCoy differentiated a defendant who
opposed counsel’s concession from a defendant who “‘was
generally unresponsive’ during discussions of trial
strategy, and ‘never verbally approved or protested’”
the concession strategy. Id. (quoting Florida v. Nixon,
543 U.S. 175, 181 (2004)). McCoy did not hold that a
defendant must expressly consent to a concession or that
a canvass must precede a concession. See id. Here, trial
counsel conceded appellant’s guilt to two of the three
charges (child abuse) during closing arguments but
disputed that appellant had committed first-degree
murder because the injury leading to the victim’s death
was allegedly accidental. During an earlier discussion
on the record and outside the jury’s presence, trial
counsel
indicated
that
the
defense
might
make
concessions as to the child abuse charges depending upon
how appellant’s wife testified, that the strategy had
been discussed for over a year with appellant, but that
there would be no concession to the murder charge. The
court then addressed appellant, explaining the State’s
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burden of proof, and asked appellant whether he had
discussed “decisions and strategies” with counsel.
Appellant affirmatively indicated that he had done so.
He did not object to the concession strategy. Because
appellant never opposed the concession strategy, McCoy
is distinguishable and does not provide good cause. We
therefore need not decide whether McCoy applies
retroactively.
To the extent that appellant argues that trial
counsel
did
not
adequately
advise
him
of
the
ramifications of the concession strategy, McCoy likewise
does not provide good cause. McCoy addressed “a client’s
autonomy, not counsel’s competence,” 138 S. Ct. at 1510,
and any claims challenging trial counsel’s advice could
have been raised in appellant’s first, timely petition
based on Nixon.
[FN 1] Notably, McCoy did not alter the
holding in Nixon. McCoy, 138 S. Ct. at 1509.
Therefore, we conclude that the district court did
not err in determining that McCoy did not provide good
cause in this case and that the district court correctly
applied the mandatory procedural bars.
[FN 2] We reject the State’s argument that a
claim based on McCoy can only be raised on
direct appeal. A McCoy claim can be raised in
a postconviction habeas petition, albeit
subject
to
the
procedural
bar
in
NRS
34.810(1)(b) because it could have been raised
on appeal. See NRS 34.724(1) (“Any person
convicted of a crime and under sentence of ...
imprisonment who claims that the conviction
Was
obtained
...
in
violation
of
the
Constitution of the United States or the
Constitution or laws of this State ... may ...
file a postconviction petition for a writ of
habeas corpus to obtain relief from the
conviction . . . .”).

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See State v. Eighth Judicial Dist. Court (Riker), 121
Nev. 225, 231, 233, 112 P.3d 1070, 1074, 1075 (2005).

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. . . .

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(ECF No. 52-2 at 2–5.)

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The Court finds the Nevada Supreme Court’s application of the

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procedural bars of NRS § 34.726(1) and NRS § 34.810(2) were

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independent of federal law because that court first invoked the

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state procedural bars for its decision and subsequently discussed
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the merits of Palmer’s claim only to show that Palmer did not show

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cause and prejudice to overcome the procedural bars. The parties

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do not dispute that the state procedural bars are adequate to

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preclude federal review. Thus, the Court finds Ground 10 was

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procedurally defaulted in state court on independent and adequate

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state law grounds.
Where

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a

procedural

default

constitutes

an

adequate

and

8

independent state ground for denial of habeas corpus, the default

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may be excused only if it will result in a fundamental miscarriage

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of justice such as where a “constitutional violation has probably

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resulted in the conviction of one who is actually innocent,” or if

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the prisoner demonstrates cause for the default and prejudice

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resulting from it. Carrier, 477 U.S. at 495–96. Palmer alleges

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none of these as a basis to overcome the default of Ground 10.

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For the foregoing reasons, Ground 10 will be dismissed with

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prejudice as procedurally defaulted on independent and adequate

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state grounds.

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V.

Conclusion

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IT IS THEREFORE ORDERED that Respondents’ motion to dismiss

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(ECF No. 61) is GRANTED IN PART AND DENIED IN PART. Grounds 6 and

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10 of the second amended petition (ECF No. 58) are dismissed with

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prejudice as procedurally defaulted. The motion to dismiss is

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denied without prejudice in all other respects.

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IT IS FURTHER ORDRERED that the Court defers consideration

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whether petitioner can demonstrate cause and prejudice to overcome

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the procedural defaults of Grounds 5(B)–5(F) and 7–9 until the

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time of merits review. Respondents may reassert the procedural

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default arguments for those claims in their answer.
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It

IS

FURTHER

ORDERED

that

Respondents’

motions

for

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enlargement of time to file a reply in support of the motion to

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dismiss second amended petition (ECF Nos. 64 and 65) are granted

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nunc pro tunc to May 31, 2022, and the reply in support of motion

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to dismiss the second amended petition (ECF No. 67) is deemed

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timely filed.

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IT IS FURTHER IS ORDERED that Respondents will have 120 days

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from the date of this order to file an answer or otherwise respond

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to Palmer’s remaining claims in the second amended petition. In

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all other respects, the schedule for further proceedings set forth

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in the scheduling order entered May 14, 2021 (ECF No. 54) will

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remain in effect.

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IT IS FURTHER ORDERED that the Clerk of the Court is directed
to substitute Tim Garrett for Respondent William Gittere.
DATED: this 25th day of August, 2022.

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HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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