United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This is an action for habeas relief under 28 U.S.C. § 2254 brought by William Witter, a Nevada prisoner sentenced to death. Witter has two motions pending before the court: a motion for evidentiary hearing (ECF No. 229) and a motion for partial reconsideration of this court's order on respondents' motion to dismiss (ECF No. 241). This order disposes of both motions.
1. Motion for Partial Reconsideration
With the motion for partial reconsideration, Witter asks the court to (1) reconsider its decision to deny equitable tolling with regard to claims dismissed as untimely and (2) allow him to demonstrate that the procedural default of his ineffective assistance of counsel claims should be excused under the holding in Martinez v. Ryan, 132 S.Ct. 1309 (2012). He also argues that, under the recent holding in Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014), this court should conduct a Martinez analysis as to the whole of Claim Two to determine whether the court can consider evidence not before the Nevada courts when it adjudicated the claim on the merits. In addition, he asks the court to reconsider whether Claim Three, which alleges a violation of Batson v. Kentucky, 476 U.S. 79 (1986), relates back to a claim contained in his initial petition.
In dismissing several of Witter's claims as untimely, this court determined that his reliance on this court's scheduling orders did not provide grounds for equitable tolling because he had not shown that he was affirmatively misled by an inaccurate statement in those orders. ECF No. 213, p. 7-8 (relying on Ford v. Pliler, 590 F.3d 782, 786 (9th Cir. 2009) and Brambles v. Duncan, 412 F.3d 1066, 1068-70 (9th Cir. 2005)). Witter claims that the Ninth Circuit's intervening decision in Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2013), compels reconsideration of that determination.
In Sossa, the court of appeals held that the lower court should have granted equitable tolling to a pro se habeas petitioner who had sought and obtained extensions of time to file an amended petition beyond the statutory deadline. 729 F.3d at 1235. The court reasoned that Sossa's request to extend the due date for his amended petition was premised "on the understanding that if the request were granted and [he] filed his amended petition by the new due date, the petition would be deemed timely, " and that "[b]y granting Sossa's request..., the magistrate judge conveyed that the premise of Sossa's request was accurate." Id. at 1233. According to the court in Sossa, "the magistrate judge's order granting Sossa's extension request affirmatively misled him in the very manner that the Supreme Court's decision in Pliler v. Ford,  and our decisions in Ford and Brambles, require." Id. (footnote added).
While Sossa lends support to Witter's claim for equitable tolling, this court stands by its initial decision on this matter. As noted by the court in Sossa, "grounds for equitable tolling under § 2244(d) are highly fact-dependent'" and "the Supreme Court has made clear that often the exercise of a court's equity powers... must be made on a case-by-case basis.'" Id. at 1229 (citations omitted). Important distinguishing factors make Sossa's claim for equitable tolling much stronger than Witter's.
Proceeding without counsel and with limited access to legal resources,  Sossa filed his amended petition only eighteen days after the statutory deadline. Witter filed the amended petition for which he seeks equitable tolling (i.e., ECF No. 67) approximately three and half years after the statutory deadline. In light of Sossa, one can make a reasonably strong argument that this court's scheduling order of April 5, 2002, "affirmatively misled" Witter about the timeliness of new claims in an amended petition filed in accordance with the court's initial December 5, 2002, deadline. Less convincing is the argument that the court continued to affirmatively mislead Witter for three more years. Moreover, eligibility for equitable tolling requires a petitioner to show "that he has been pursuing his rights diligently." Holland v. Florida, 130 S.Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (internal quotation marks omitted).
When Witter filed a supplemental motion for leave to conduct discovery in December of 2003, this court expressed its dismay with what appeared to be unreasonable delay on the part of the petitioner. ECF No. 43, p. 2 (noting that petitioner had failed to explain why he waited so long to seek discovery of material that he had been aware of twenty months earlier). Even with discovery proceedings completed (see ECF No. 59, p. 5), Witter did not file his amended petition for another ten months. And, as noted in this court's prior order, his amended petition was filed five months after the decision in Mayle v. Felix, 545 U.S. 644 (2005), which clarified the relation back doctrine as applied to amended federal habeas petitions.
Another difference between the instant case and Sossa is that Witter's initial petition contained numerous substantive claims, whereas Sossa's initial petition contained none. A decision to deny equitable tolling in Sossa, and in Prieto v. Quarterman, 456 F.3d 511 (5th Cir. 2006) (a case heavily relied upon in Sossa ), would have meant the complete dismissal of the petitioner's case, an unreasonable result under the circumstances. Cf. Rhines v. Weber, 544 U.S. 269, 278 (2005) (recognizing that, when an exhaustion stay is not appropriate, the court should allow the petitioner to delete the unexhausted claims "if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief"). In both cases, the court of appeals found that the lower's orders extending time to file an amended petition were "crucially misleading." Sossa, 729 F.3d at 1233. The orders extending time in this case were not inaccurate in the same manner that the orders in Sossa and Prieto were. In accordance with this court's orders, Witter has been permitted to amend claims that are now before the court for a decision on the merits. At no point did the court represent to Witter that all claims in his amended petition would "relate back" for statute of limitations purposes.
Witter also asks the court to revisit its denial of his request to demonstrate that the procedural default of his ineffective assistance of counsel claims should be excused under the holding in Martinez v. Ryan, 132 S.Ct. 1309 (2012). The court denied the request because all of the claims for which Witter sought to make such a showing (except for Claim Two) are time-barred, as well as procedurally defaulted, making litigation of Martinez issues in relation to those claims a source of unnecessary delay. ECF No. 213, p. 24. Witter's request to reconsider that decision is premised on this court reversing its determination that the claims are time-barred, which, for reasons discussed above, the court is not going to do.
With respect to Claim Two, the court determined that a Martinez showing is unnecessary because the claim is not procedurally defaulted. Id. Claim Two alleges ineffective assistance of trial counsel in the penalty phase due to counsel's failure to present certain mitigating evidence, primarily evidence related to fetal alcohol exposure, and to rebut evidence presented at trial regarding Witter's gang affiliation. This claim was presented to the Nevada Supreme Court in Witter's first post-conviction proceeding (ECF No.169-2, p. 72-79); and, Witter argued as much in his opposition to respondents' motion to dismiss the claim. ECF No. 195, p. 109.
Notwithstanding the court's determination that the claim is not procedurally defaulted, Witter contends that this court should conduct a Martinez analysis to determine whether the court can consider evidence not before the Nevada courts when it adjudicated the claim on merits. Under Cullen v. Pinholster, 131 S.Ct. 1388 (2011), this court's consideration of evidence in support of a claim is limited to evidence that was before the state court that adjudicated the claim on the merits. 131 S.Ct. at 1398. In Dickens, the Ninth Circuit held that: (1) the Pinholster limitation does not apply to a procedurally defaulted ineffective assistance claim because it was not previously adjudicated on the merits by the state courts; and (2) 28 U.S.C. § 2254(e)(2) does not bar an evidentiary hearing for a petitioner to show cause and prejudice under Martinez because petitioner is not asserting a constitutional "claim" for relief. Dickens v. Ryan, 740 F.3d 1302, 1320-21 (9th Cir. 2014).
Witter argues that, with respect to the applicability of Martinez, there is no rational distinction between an instance in which post-conviction counsel is ineffective for failing to raise a Strickland claim and one in which post-conviction counsel is ineffective in failing to develop evidence in support of a Strickland claim. Unfortunately for Witter, Dickens and at least one other post- Martinez case in the Ninth Circuit, Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013), explicitly limit Martinez to the former. See Dickens, 740 F.3d at 1320 (" Pinholster does not bar Dickens from presenting evidence of his "new" IAC claim, because the claim was not "adjudicated on the merits" by the Arizona courts."); Detrich, 740 F.3d at 1246 (" Martinez does not apply to claims that were not ...