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
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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 . . . .”).
22
See State v. Eighth Judicial Dist. Court (Riker), 121
Nev. 225, 231, 233, 112 P.3d 1070, 1074, 1075 (2005).
23
. . . .
24
(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
27
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
2
cause and prejudice to overcome the procedural bars. The parties
3
do not dispute that the state procedural bars are adequate to
4
preclude federal review. Thus, the Court finds Ground 10 was
5
procedurally defaulted in state court on independent and adequate
6
state law grounds.
Where
7
a
procedural
default
constitutes
an
adequate
and
8
independent state ground for denial of habeas corpus, the default
9
may be excused only if it will result in a fundamental miscarriage
10
of justice such as where a “constitutional violation has probably
11
resulted in the conviction of one who is actually innocent,” or if
12
the prisoner demonstrates cause for the default and prejudice
13
resulting from it. Carrier, 477 U.S. at 495–96. Palmer alleges
14
none of these as a basis to overcome the default of Ground 10.
15
For the foregoing reasons, Ground 10 will be dismissed with
16
prejudice as procedurally defaulted on independent and adequate
17
state grounds.
18
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
22
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
25
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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Case 3:18-cv-00245-HDM-CLB Document 68 Filed 08/25/22 Page 17 of 17
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It
IS
FURTHER
ORDERED
that
Respondents’
motions
for
2
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
5
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
12
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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