Opinion
2:07-cv-01305-KJD-LRL.
March 30, 2010
ORDER
This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion (#30) to dismiss, which seeks the dismissal of Grounds 2, 3, 5 and 6 as procedurally defaulted, as well as upon an outstanding motion (#31) for an extension.
Background
Petitioner Barbara Pinkston seeks to set aside her 1997 Nevada state conviction, pursuant to a jury verdict, of first degree murder with the use of a deadly weapon.
Respondents previously sought to dismiss, inter alia, Grounds 2, 3, 5 and 6 for lack of exhaustion. Petitioner contended in response, inter alia, that the claims were exhausted because they were procedurally defaulted, maintaining that"[a]ny post-conviction petition filed now would be vigorously argued by Respondents to be both untimely and successive."
#28, at 22.
In its order on the earlier motion to dismiss, this Court noted that the standards for avoiding a procedural bar in the Nevada state courts are substantially the same as the standards applied in federal court. Accordingly, the Court, in prior cases, has declined to hold that claims were exhausted on the basis that they would be procedurally barred in Nevada state court absent an unequivocal stipulation that the petitioner would not be able to demonstrate cause and prejudice to overcome the state procedural bar in the Nevada state courts, that the petitioner could not avoid the state procedural bar on a showing of actual innocence, and that the procedural bars otherwise now are consistently applied by the Nevada state courts. In the absence of such concessions, the Court has declined to hold that there is no possibility that unexhausted claims would be considered by the Nevada state courts based upon a state procedural bar.
#29, at 6-7.
The Court found that the present case was distinguishable, however, as to Grounds 2, 3, 5 and 6. The Court noted that the only argument that would appear to be practically available to petitioner for overcoming a state procedural bar as to these substantive claims would be a claim of cause and prejudice based upon ineffective assistance of appellate counsel in failing to raise the substantive claims on direct appeal. On a prior state post-conviction petition, the Supreme Court of Nevada rejected petitioner's claims that appellate counsel was ineffective for failing to raise the underlying substantive claims on direct appeal. This Court concluded that "[t]he likelihood that the Supreme Court of Nevada would revisit its holding on the ineffective assistance claim rather than apply the law of the case doctrine to a claim of cause and prejudice based upon such alleged ineffective assistance is virtually nil." The Court accordingly held that Grounds 2, 3, 5 and 6 were technically exhausted because the substantive claims would be procedurally barred in the state courts, subject to respondents' ability to pursue a motion to dismiss the claims in federal court on the basis of procedural default.
E.g., #29, at 8.
#29, at 8, 10-11, 14 15.
In the present motion, respondents seek the dismissal of these grounds on the basis that they would be barred under Nevada law as "both untimely and successive." #30, at 6.
Governing Law
Under the procedural default doctrine, federal review of a habeas claim may be barred if the state courts rejected the claim on an independent and adequate state law ground due to a procedural default by the petitioner. Review of a defaulted claim will be barred even if the state court also rejected the claim on the merits in the same decision. Federal habeas review will be barred on claims rejected on an independent and adequate state law ground unless the petitioner can demonstrate either: (a) cause for the procedural default and actual prejudice from the alleged violation of federal law; or (b) that a fundamental miscarriage of justice will result in the absence of review. See, e.g., Bennet v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003).To demonstrate cause, the petitioner must establish that some external and objective factor impeded his efforts to comply with the state's procedural rule. E.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) ; Hivala v. Wood, 195 F.3d 1098, 1105 (9th Cir. 1999). To demonstrate prejudice, he must show that the alleged error resulted in actual harm. E.g., Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). Both cause and prejudice must be established. Murray, 477 U.S. at 494, 106 S.Ct. at 2649.
Discussion
Applicable State Procedural Bars
Petitioner urges, first, as follows:
Given that this Court has found, and Respondents have agreed, that the Nevada Supreme Court would decline to review the merits of Ms. Pinkston's grounds for relief on the basis that it has done so already, i,e., because of law of the case, no bar to federal habeas review has resulted. Cone v. Bell, ___ U.S. ___, 129 S. Ct. 1769, 1781 (2009); Ylst v. Nunnemaker, 501 U.S. 797, 804, n. 3 (1991).
#32, at 4.
Petitioner misstates the Court's prior holding.
This Court made no holding that the state supreme court would decline to review the merits of the substantive claims in Grounds 2, 3, 5 and 6 by applying law of the case doctrine to those substantive claims.
The Court instead held that "[t]he likelihood that the Supreme Court of Nevada would revisit its holding on the ineffective assistance claim rather than apply the law of the case doctrine to a claim of cause and prejudice based upon such alleged ineffective assistance is virtually nil." Petitioner, in opposing the prior motion to dismiss on the basis of exhaustion, posited that the state supreme court would reject the substantive claims in Grounds 2, 3, 5 and 6 as "both untimely and successive." This Court held that the chances that the state supreme court would find that petitioner could establish cause and prejudice as to these procedural bars were virtually nil because that court already had rejected claims that appellate counsel had been ineffective for failing to raise the substantive claims on direct appeal. Respondents now seek the dismissal of the substantive claims as procedurally defaulted because they would be found untimely and successive, not on the basis of law of the case.
E.g., #29, at 8 (emphasis added).
This Court, again, made no holding that the substantive claims in Grounds 2, 3, 5 and 6 would be barred by law of the case if he returned to state court. Respondents' present motion to dismiss similarly is not based upon a premise that the law of the case would be applied to the substantive claims. Cone and Ylst have nothing to do with this case. Adequate State Law Ground
An argument based upon such a misstatement of the Court's prior holding is, at best, unpersuasive.
Petitioner rehashes an argument from the earlier motion to dismiss that the state supreme court's rejection of the claim of ineffective assistance of appellate counsel constituted a rejection of the substantive claim, such that the underlying substantive claim was exhausted. This Court rejected all such arguments. See, e.g., #29, at 11. Exhaustion of a claim of ineffective assistance of appellate counsel does not exhaust the underlying substantive claim.
Petitioner next contends that the procedural bars that were invoked by respondents, under N.R.S. 34.726 and N.R.S. 34.810, do not constitute "adequate" state law grounds for purposes of the procedural default doctrine. Petitioner contends that the procedural bars were not clear, consistently applied, or well-established.
In order for a state procedural rule to be "adequate" to support the state court judgment, the state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default. See, e.g., Collier v. Bayer, 408 F.3d 1279, 1284 (9th Cir. 2005). A state law procedural rule is adequate if the state courts followed the rule "in the vast majority of cases" during the relevant time. Dugger v. Adams, 489 U.S. 401, 410 n. 6, 109 S.Ct. 1211, 1217 n. 6, 103 L.Ed.2d 435 (1989); Moran v. McDaniel, 80 F.3d 1261, 1270 (9th Cir. 1996). A demonstration that the state courts allegedly departed from a consistent application of the state procedural rule in only a "few cases" fails to establish that the state courts do not regularly and consistently apply the procedural rule. Dugger, 489 U.S. at 410 n. 6, 109 S.Ct. at 1217 n. 6 (the Supreme Court held that the state procedural rule constituted an adequate state law ground where the habeas petitioner presented only five cases with arguably inconsistent applications of the rule).
In Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), the Ninth Circuit established a burden-shifting analysis for determining whether a state procedural rule constitutes an adequate state law ground for purposes of the federal procedural default doctrine. Under Bennett, the State has the ultimate burden of proving the adequacy of the state procedural bar. However, the petitioner initially must come forward with case law allegedly demonstrating inconsistent application of the rule:
Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner. The petitioner may satisfy this burden by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule. Once having done so, however, the ultimate burden is the state's.322 F.3d at 586 (emphasis added).
The Court looks first to N.R.S. 34.726(1), which provides for a one-year limitation period for state post-conviction petitions. When a habeas petitioner challenges the consistency of a state's application of a time bar, the court must look to the consistency of the application of the time-bar rule both at the time that the limitations period began running following the denial of the direct appeal and at the time that the time bar was applied in denying post-conviction relief. See, e.g., High v. Ignacio, 408 F.3d 585, 589 (9th Cir. 2005). In this case, the Court thus looks to the consistency of the Nevada Supreme Court's application of N.R.S. 34.726(1) both at the time that petitioner's direct appeal was denied in 2000 and at the time that the time bar would be applied on state post-conviction review currently in 2010.
The Ninth Circuit consistently has rejected the argument that the Supreme Court of Nevada inconsistently applies the one-year time bar in N.R.S. 34.726(1) generally for time periods up through 1996. See Collier, 408 F.3d at 1285; Loveland v. Hatcher, 231 F.3d 640, 642-63 (2000) (as of 1993); Moran, 80 F.3d at 1269-70 (as of 1996); see also High, 408 F.3d at 590 (discussing rejection of the inconsistency argument as to N.R.S. 34.726(1) in rejecting the same argument regarding an earlier Nevada provision). When the Ninth Circuit has held, as it held in the foregoing cases with regard to N.R.S. 34.726(1), that the state procedural rule has been consistently applied, the petitioner then has the burden of citing state court cases demonstrating a subsequent inconsistent application of the state rule. E.g., King v. Lamarque, 464 F.3d 963, 966-67 (9th Cir. 2006).
In this case, petitioner has not presented any Nevada case law in any way indicating that — subsequent to the period considered in the foregoing Ninth Circuit authorities — the Supreme Court of Nevada applied the one-year time bar in N.R.S. 34.726(1) inconsistently, whether in 2000, in 2010, or at any point in between. Petitioner cites to three Nevada state cases pertaining to the contemporaneous objection requirement in order to preserve sundry trial errors for review on direct appeal. These cases have nothing to do with the application of N.R.S. 34.726(1). Under established law, cases that concern other procedural rules and that do not discuss the application of the procedural rule barring an untimely post-conviction petition "are not relevant" to the question of whether N.R.S. 34.726(1) has been consistently applied. Moran, 80 F.3d at 1270. Petitioner cites no Nevada case law in any way indicating an inconsistent application of N.R.S. 34.726(1) during the relevant time period, from 2000 through the current time.
See cases cited in #32, at 12-13. The cited portion of Koerner v. Grigas, 328 F.3d 1039, 1047 (9th Cir. 2003), also has nothing to do with the application of N.R.S. 34.726(1) and is inapposite. If petitioner were to establish that the state courts potentially would overlook the state procedural bars "without any apparent rhyme or reason," see #32, at 12, line 19, the predicate for this Court's exhaustion ruling would be removed. The Court's prior ruling was premised upon there being no possibility of state court review of the claims at this point. If petitioner were to establish that that is not the case, on the basis that the state courts overlook the procedural bars, this Court would vacate its prior order and require petitioner to either dismiss the unexhausted claims or seek other appropriate relief to address the mixed petition. Petitioner cannot have it both ways. In this context, the claims either are exhausted because they now would be procedurally barred in the state courts or there is a possibility that the state courts would hear the claims because they allegedly do not consistently apply the procedural bars, such that the claims then are not exhausted.
In the absence of any authority showing that the state courts apply N.R.S. 34.726(1) inconsistently, the Court must presume that the state procedural rule is adequate. See High, 408 F.3d at 590. The Court holds that N.R.S. 34.726(1) constituted an adequate state law ground at the relevant time for purposes of the procedural default doctrine.
The Court therefore need not reach any issue as to whether N.R.S. 34.810 also would constitute an adequate state law ground in this case.
Cause and Prejudice
As the Court noted in the prior order, the only argument that would appear to be practically available for overcoming the state procedural bars to Grounds 2, 3, 5 and 6 is an argument seeking to establish cause and prejudice based upon ineffective assistance of appellate counsel in failing to raise the claims on direct appeal.
See, e.g., #29, at 7-8.
In the opposition to the present motion, petitioner, "for the sake of brevity," merely incorporated by reference the allegations of ineffective assistance from the amended petition. Respondents did not file a reply memorandum. The motion to dismiss otherwise did not address the particulars of the claims of ineffective assistance of counsel as a basis for a claim of cause and prejudice, which is a matter as to which petitioner has the burden of proof.
The Court thus is presented with minimal specific argument by the parties as to what is the central issue in adjudicating the application of the procedural default doctrine as to Grounds 2, 3, 5 and 6. Given that Ground 9 of the amended petition alleges ineffective assistance of appellate counsel for failure to present these federal substantive claims, the Court will defer further consideration of the procedural default defense as to these claims until after the filing of an answer and reply that more fully addresses the related claims of ineffective assistance of appellate counsel.
Evidentiary Hearing Request
Petitioner makes a conclusory form request for an evidentiary hearing without identifying any specific issues warranting an evidentiary hearing on the motion. Adjudication of claims of ineffective assistance of appellate counsel does not require an evidentiary hearing. If additional factual material is pertinent to a motion to dismiss, it is incumbent upon petitioner to tender such facts by affidavit or otherwise with the opposition to the motion. The request for an evidentiary hearing on this motion is denied.
IT THEREFORE IS ORDERED that respondents' motion (#30) to dismiss is DENIED without prejudice to the Court's further consideration of the procedural default defense as to Grounds 2, 3, 5 and 6 when it considers the merits of the claims of ineffective assistance of counsel based upon appellate counsel's failure to raise these substantive claims on direct appeal.
IT FURTHER IS ORDERED that, within forty-five (45) days of entry of this order, respondents shall file an answer to all remaining claims.
IT FURTHER IS ORDERED that, in the answer filed in response to this order, respondents shall address, separately and distinctly as to each ground under separate headings for Grounds 2, 3, 5 and 6, petitioner's claim that appellate counsel was ineffective for failing to raise each such claim on direct appeal. Such discussion shall identify the state supreme court's holding rejecting the corresponding ineffective assistance claim, together with argument addressed to the state court record materials supporting the state court decision. Respondents may cross-reference back to such discussion under Grounds 2, 3, 5 and 6 in responding to the pertinent portions of the ineffective assistance claims in Ground 9, so long as respondents otherwise fully respond to the remaining claims in Ground 9. Respondents need respond to Grounds 2, 3, 5 and 6 only as provided herein, i.e., within the context of the claim of cause and prejudice based upon alleged ineffective assistance of appellate counsel. If the Court determines as a threshold matter that petitioner has established cause and prejudice as to a claim or claims based upon ineffective assistance of appellate counsel, the Court will review the merits of any such underlying substantive claim as a non-defaulted claim on de novo review.
IT FURTHER IS ORDERED that petitioner may file a reply to the answer within forty-five (45) days of service.
IT FURTHER IS ORDERED that petitioner's motion (#31) for an enlargement of time to file an opposition to the present motion to dismiss is GRANTED nunc pro tunc.