United States District Court, D. Nevada
June 2, 2014
JIMMY LEE NELSON, Petitioner,
ATTORNEY GENERAL, et al., Respondents.
LARRY R. HICKS, District Judge.
This closed habeas matter under 28 U.S.C. § 2254 comes before the Court on a motion (#75) for evidentiary hearing by petitioner in proper person.
In 2000, petitioner Jimmy Lee Nelson was convicted in Nevada state court, pursuant to a jury verdict, of two counts of sexual assault and two counts of lewdness with a minor under fourteen years of age. Petitioner challenged the conviction on direct appeal and state post-conviction review, but his state petition was untimely. The remittitur concluding the appeal on the untimely state petition issued on June 14, 2005.
On or about March 7, 2006, Nelson mailed a federal petition to the Clerk for filing. The Court appointed the Federal Public Defender to represent petitioner. The Court thereafter dismissed the federal petition as untimely. The Ninth Circuit affirmed on appeal in No. 08-15829 in an October 28, 2009, memorandum opinion. The United States Supreme Court denied a petition for a writ of certiorari on March 29, 2010, in No. 09-8777 in that court.
Over two years later, on or about May 29, 2012, petitioner in proper person mailed, inter alia, a motion to reopen to the Clerk for filing.
Petitioner sought to reopen the federal habeas action on the basis that federal habeas counsel allegedly had provided ineffective assistance of counsel in failing to establish his alleged actual innocence in order to overcome the untimeliness of the federal petition. Petitioner asserted in particular in the motion, inter alia, that:
(1) federal habeas counsel "[f]ailed to interview any witnesses, the alleged victims, Doctors involved, former counsel, the district attorney or any one involved in this case whatsoever;"
(2) "... evidence was available to [federal habeas counsel] Debra A. Bookout which denied the fact of the crime, a medical report which was not allowed to be used in the defense of petitioner at his trial [and] [t]he State failed to make this report available to counsel for the defense Debra A. Bookout, " constituting a Brady violation;
(3) "Petitioner's [adult] daughter Brenda Nelson [the victims' mother] had made contact with Dr. Wicker of Las Vegas, NV[;] Dr. Wicker evaluated the two alleged victims... [and] stated [there was] no evidence of sexual abuse of either victim; and Ms. Debra A. Bookout failed to bring forth this evidence;" and
(4) federal habeas counsel informed petitioner in a telephone conversation that "she had an investigator who in fact was going to interview his daughter concerning the medical examination of the two alleged victims, and their recantations of any and all alleged sexual assault by petitioner... which would have led Counsel to discover a medical doctor whose findings would have proved Petitioner's innocence, " but she did not pursue the investigation.
#56, at 1-5.
The Court allowed the Federal Public Defender to withdraw so that the Court could appoint substitute counsel to investigate and potentially pursue the issues raised on petitioner's motion to reopen. As an administrative matter, the Court denied the proper person motion without prejudice with the understanding that the May 29, 2012, mailing date of the proper person motion would be deemed the constructive filing date of a motion to reopen on substantially the same grounds filed by substitute federal habeas counsel after investigating the matter. #67.
On February 7, 2013, the Court appointed Ms. Mary Lou Wilson substitute federal habeas counsel. Ms. Wilson sought and was granted two extensions seeking more time to investigate and assess the matter.
On February 14, 2014, counsel filed a notice asserting that "[i]investigation has been completed in this case and at this time counsel will not be reopening the case." #74, at 1.
On or about March 21, 2014, petitioner mailed the present motion for filing. Petitioner asserted therein, inter alia, that substitute counsel obtained interviews only from the two victims and that this constituted "no investigation at all." Petitioner maintained that counsel should have investigated a number of matters, including: (a) alleged Fourth Amendment and Miranda violations; (b) allegedly repeated warrantless arrests; and (c) an "interview of the Dr. that examined both of the alleged victims" that petitioner's daughter, the victims' mother, "took both girls too." #75, at 1-2.
Nelson seeks an evidentiary hearing "to show cause why Attorney Wilson [has] failed to properly represent petitioner in this matter... and [conduct] a proper, quality investigation, " an order discharging Ms. Wilson as counsel, and an order appointing petitioner what would be a third appointed federal habeas counsel and a second post-judgment counsel.
In the proceedings following petitioner's May 29, 2012, original proper person motion to reopen, the Court has made provisional arguendo assumptions that: (a) a showing that a petitioner was denied purported effective assistance of federal habeas counsel for failing to establish actual innocence to overcome the federal time-bar could demonstrate "any other reason that justifies relief" for purposes of post-judgment relief under Rule 60(b)(6); and (b) petitioner's post-judgment motion itself at least conceivably might be found to be timely under Rule 60(c)(1).
At the end of the proverbial day, even with such arguendo assumptions, petitioner still would have to show that original federal habeas counsel failed to pursue a potentially viable claim of actual innocence under the applicable standard.
To overcome the untimeliness of a federal petition based upon actual innocence, a petitioner must pass through the narrow gateway in Schlup v. Delo, 513 U.S. 298 (1995). See McQuiggin v. Perkins, 133 S.Ct. 1924 (2013); Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011)( en banc ). To satisfy the narrow Schlup standard, a petitioner must come forward with new reliable evidence that was not presented at the trial that, together with the evidence adduced at trial, demonstrates that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. Schlup, 513 U.S. at 329. The evidence need not be newly discovered, but it must be "newly presented." See Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003). In this regard, "actual innocence" means actual factual innocence, not mere legal insufficiency. See, e.g., Sawyer v. Whitley, 505 U.S. 333, 339 (1992). The reviewing court "must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial, " and it "may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." Schlup, 513 U.S. at 332.
The state court record materials on file reflect, inter alia, the following.
Nelson was charged by criminal complaint on February 26, 1997, with having committed the following offenses in Nye County, Nevada: (a) sexual assault of the then nine year old R.S. between June 1, 1993, and September 30, 1993, by putting his finger in her vagina; (b) sexual assault of the then eight year old A.S. between December 1, 1993, and December 30, 1993, by putting his finger in her vagina; (c) lewdness with a minor under 14 years committed on R.S. between June 1, 1993, and September 1, 1993, by touching her breasts and kissing her on the lips; and (d) lewdness with a minor under 14 years committed committed on A.S. between December 1, 1993, and December 31, 1993, by touching her buttocks.
The State's evidence at trial tended to establish, inter alia, the following. R.S. and A.S., Nelson's granddaughters, reported the 1993 offenses to their step-grandmother (who was divorced from Nelson) in November, 1996, while in New Jersey. She contacted law enforcement in New Jersey at that time. At trial, neither R.S. nor A.S. testified to any physical penetration by Nelson other than digital penetration in each young girl's vagina in 1993. The licensed therapist who conducted numerous counseling sessions with the children in New Jersey after they reported the incidents found that their therapeutic presentation was consistent with sexual abuse. The State further presented other crimes evidence, following a hearing on admissibility, including the testimony of another women, the daughter of the victims' step-grandmother, that Nelson had sexually molested while she was a young girl.
Against the backdrop of the trial evidence, petitioner has failed to identify an avenue of investigation of actual innocence that potentially would satisfy the narrow Schlup gateway that original and substitute federal habeas counsel allegedly failed to pursue through ineffective assistance.
Nelson's bare, self-serving suggestion to this Court on May 29, 2012, that the victims had recanted stands belied. Conflict-free substitute federal habeas counsel investigated that matter. There are no such recantations. Nor does petitioner continue to assert that there are such recantations.
Rather, petitioner contends that substitute counsel failed to investigate other issues that purportedly needed to be investigated. Yet, against the backdrop of the actual trial evidence, none of the potential avenues of investigation that he identifies, which similarly are supported only by his own bare self-serving assertions, reasonably could lead to the discovery of evidence of actual innocence satisfying the narrow Schlup gateway.
Clearly, investigation regarding alleged Fourth Amendment, Miranda, and warrantless arrest violations would not establish actual factual innocence under Schlup. 
Nor can investigation of an alleged examination by a Dr. Wicker in Las Vegas develop evidence that, together with the evidence adduced at trial, would demonstrate that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt.
Any alleged physical examination by a Dr. Wicker could not establish actual innocence on the facts presented. The victims reported the Pahrump, Nevada offenses in New Jersey over three years after they occurred. Even if a physician conducted a physical sexual assault examination the day of an alleged digital penetration, the absence of positive findings in such an examination would not render it more likely than not that no reasonable juror would convict. Sexual assault convictions frequently are obtained and upheld in the absence of such positive findings, including in cases involving more than only digital penetration. A fortiori, the absence of positive findings instead years after the offenses of course clearly could not rule out digital penetration in 1993. Nor could the absence of positive findings in a physical examination rule out the possibility of a conviction for lewdness based upon kissing a child's lips or touching their breasts or buttocks.
Any alleged mental or psychological examination by a Dr. Wicker - assuming that such was within the provider's normal area of expertise - similarly would not establish, together with the evidence adduced at trial, that it is more likely than not that no reasonable juror would have found Nelson guilty beyond a reasonable doubt. Jurors then would have been presented with contrasting opinions by two providers and the testimony of the victims. The fact that one provider was a doctor of some type would not require that jurors accept one opinion over the other.
The same observations apply to any other arguendo additional medical or psychological evidence possibly referenced in petitioner's bare, vague self-serving references to "Doctors involved, " to a medical report that the defense allegedly was not allowed to use and that was withheld by the State from original habeas counsel allegedly in violation of Brady,  and to the prospect that an interview of the mother would lead to discovery of a medical examination that would establish actual innocence. If petitioner is referring in such bare self-serving assertions to medical evidence over and above an examination by a Dr. Wicker, such evidence cannot establish that it is more likely than not that no juror would find petitioner guilty beyond a reasonable doubt. Against the backdrop of the evidence presented at trial, with the 1993 offenses being reported in 1996, neither a physical examination nor a mental or psychological examination result would satisfy the narrow Schlup gateway. Petitioner must do more than present arguendo favorable evidence not presented at trial. He instead must present evidence that, together with the evidence adduced at trial, demonstrates that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. Physical or mental evaluations, especially years after the fact, would not satisfy this demanding standard - indulging an arguendo assumption that petitioner's self-serving references to exculpatory medical evidence are any more reliable than his belied allegation that the victims recanted.
Petitioner suggests that original and substitute counsel further must "interview any witnesses... former counsel, the district attorney or any one involved in this case" in an effort to establish actual innocence. The victims have not recanted. The alleged medical evidence referenced by petitioner, even if an assumption is made that it actually exists, would not satisfy the narrow Schlup gateway against the backdrop of the trial evidence. Federal habeas counsel - whether original or substituted - clearly was not required to then conduct what would be not only a fishing expedition but in truth a goose chase asking, e.g., the district attorney, if there is any evidence of actual innocence. An order to engage in such folly, years after final judgment, clearly is not warranted.
The Court therefore will deny the principal relief sought on the present motion, the appointment of a new attorney to further pursue petitioner's bare, vague and self-serving assertions of actual innocence. Petitioner must present more than his own self-serving assertions - which in their most principal part have been belied as to the nonexistent recantations - after two federal habeas attorneys have independently reviewed the matter and declined to pursue a claim of alleged actual innocence to overcome the untimeliness of the federal petition.
The Court will grant the request to terminate substitute counsel's representation, but without appointment thereafter of further replacement counsel. Current counsel has fully discharged her obligations in the matter, and no competent counsel would pursue the matter further based on the record and the self-serving assertions presented. Merely because counsel has not done everything that petitioner wants her to do does not signify that she has a "conflict of interest." The Court will terminate the current representation so that petitioner may pursue any relief sought hereafter in proper person without a question as to whether he instead should be required to proceed through counsel of record.
The Court further will deny all principal relief sought in proper person from May 29, 2012, on, other than the provisional relief provided previously of appointing conflict-free substitute counsel to investigate the matter. That is, the Court is denying the underlying request to reopen the matter presented on May 29, 2012. This order thus constitutes the Court's final word on the proper person relief sought herein in proper person on and after May 29, 2012. This order therefore postures all issues raised, including the request to reopen, for appellate review on a timely appeal from this order.
IT THEREFORE IS ORDERED that petitioner's proper person motion (#75) for evidentiary hearing is GRANTED IN PART and DENIED IN PART, such that the Court GRANTS petitioner's request to terminate current counsel's representation but DENIES all other requests for relief therein, including the requests for an evidentiary hearing and for appointment of replacement counsel.
IT FURTHER IS ORDERED that the appointment of Mary Lou Wilson, Esq., as petitioner's counsel is TERMINATED, following upon counsel having fully satisfied her professional obligations herein. Petitioner is proceeding in proper person hereafter following upon this order.
IT FURTHER IS ORDERED that the Court denies all other requests for relief asserted herein by petitioner in proper person seeking to reopen the matter, with this order constituting a conclusive and final denial of relief under Rule 60(b) with regard to the October 31, 2007, final judgment.
IT FURTHER IS ORDERED that a certificate of appealability, to the extent required in this procedural context, is DENIED. Jurists of reason would not find the Court's rejection of Rule 60(b) and other post-judgment relief in this action to be debatable or wrong. The Court appointed conflictfree substitute counsel to investigate petitioner's allegations that the Federal Public Defender provided ineffective assistance of counsel in failing to establish his alleged actual innocence in order to overcome the untimeliness of the federal petition. Such investigation belied petitioner's bare, self-serving allegation that the child sexual abuse victims had recanted. For the reasons discussed herein, petitioner's remaining bare and self-serving allegations do not establish that not just one but now two federal habeas counsel have failed to pursue a potentially viable claim of actual innocence under the narrow Schlup actual innocence gateway.
The Clerk shall assure that both Ms. Wilson and the petitioner in proper person receive a copy of this order and shall reflect the transmittal to both individuals separately in the docket entry for this order.