United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This represented habeas matter comes before the Court on respondents' motion to dismiss (dkt. no. 40), petitioner's motion to stay (dkt. no. 47), and a motion for an extension of time (dkt. no. 52). Respondents seek the dismissal of a number of grounds as untimely and/or unexhausted. Petitioner opposes dismissal on these bases, relying on relation back for timeliness. Petitioner seeks a stay to return to state court to exhaust Ground 7.
Petitioner James Wright, Jr. challenges his Nevada state conviction, pursuant to a jury verdict, of robbery with the use of a firearm and eluding a police officer along with his adjudication as a habitual criminal. Wright challenged the conviction on direct appeal and on state post-conviction review.
II. TIMELINESS AND RELATION BACK
A. Governing Law
A claim in an amended petition that is filed after the expiration of the one-year limitation period will be timely only if the claim relates back to a claim in a timely-filed claim under Rule 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises out of "the same conduct, transaction or occurrence" as the timely claim. Mayle v. Felix, 545 U.S. 644 (2005). In Mayle, the Supreme Court held that habeas claims in an amended petition do not arise out of "the same conduct, transaction or occurrence" as prior timely claims merely because the claims all challenge the same trial, conviction or sentence. 545 U.S. at 655-64. Rather, under the construction of the rule approved in Mayle, Rule 15(c) permits relation back of habeas claims asserted in an amended petition "only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in both time and type' from the originally raised episodes." 545 U.S. at 657. In this regard, the reviewing court looks to "the existence of a common core of operative facts' uniting the original and newly asserted claims." A claim that merely adds "a new legal theory tied to the same operative facts as those initially alleged" will relate back and be timely. 545 U.S. at 659 & n.5.
B. Ground 2(a)
In Ground 2(a), petitioner alleges that he was denied effective assistance of trial counsel when counsel failed to object to questioning that elicited testimony about his co-defendant's statements implicating petitioner. Wright alleges in particular that the state trial court reversed a ruling severing his case from co-defendant Kevin Gill's case based upon a condition that the State could not elicit any testimony during its case in chief regarding Gill's statements implicating Wright. Petitioner alleges that the State did not elicit such testimony during its case in chief but that the State cross-examined Gill as to the inculpatory statements and then called Detective Jenkins to testify to Gill's statements implicating Wright. Petitioner alleges that counsel was ineffective for failing to object to this questioning as to Gill's statements.
The Court is persuaded that the claim in amended Ground 2(a) that trial counsel was ineffective for failing to object to the questioning as to Gill's statements relates back to both: (1) the substantive claim in original Ground 2 alleging prosecutorial misconduct based upon the questioning of Detective Jenkins regarding Gill's statements; and (2) the ineffective-assistance claim in original Ground 5 alleging that counsel was ineffective for failing to object to the prosecutor's alleged misconduct in eliciting testimony as to Gill's statements.
In this regard, the Court is not persuaded by the argument that the ineffective-assistance claim in amended Ground 2(a) inherently arises from operative facts different in time and type from the substantive claim in original Ground 2 because the ineffective-assistance claim is directed to defense counsel's actions whereas the substantive claim is directed to the prosecutor's actions. The apposite governing principle instead is that a claim based upon a different legal theory that is tied to the same operative facts relates back to the prior claim. Mayle, supra . Both amended Ground 2(a) and original Ground 2 arise from the same operative facts - questioning as to Gill's statements inculpating Wright. The point that the amended claim is based upon a legal theory of ineffective assistance of counsel and the original claim was based upon a legal theory of prosecutorial misconduct is not determinative. See, e.g., Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296-97 (9th Cir. 2013) (amended claim of ineffective assistance of counsel for failing to raise double jeopardy claim related back to substantive claim in original petition).
The Ninth Circuit decision in Schneider v. McDaniel, 674 F.3d 1144 (9th Cir.), cert. denied, 133 S.Ct. 579 (2012), is not to the contrary. In Schneider, an amended substantive claim challenging the trial court's denial of a mid-trial motion to sever did not relate back to an original ineffective-assistance claim based on trial counsel's pretrial failure to investigate the co-defendant's trial strategy. 674 F.3d at 1151. The Schneider panel did note that the theory of the original claim was based upon counsel's alleged failures - which occurred prior to trial - and that the theory of the amended claim was based upon the trial court's alleged errors - which occurred after the trial commenced. Id. However, Schneider made no holding that a claim of ineffective assistance of counsel never can relate back to a substantive claim even where the ineffective-assistance claim and the substantive claim arise from the same operative facts - such as allegedly improper questioning to which counsel did not object.
The Court further finds that amended Ground 2(a) relates back also to the ineffective-assistance claim in original Ground 5. Respondents contend that the operative facts in original Ground 5 did not include a failure to object to the questioning of Detective Jenkins regarding Gill's statements. However, the operative facts should not be parsed so narrowly in this context. The claims instead arise from operative facts consisting of questioning as to Gill's statements inculpating Wright. A claim that trial counsel was ineffective for failing to object to the questioning of one witness regarding Gill's statements ( i.e., Jenkins) relates back to the original claim that counsel was ineffective for failing to object to the questioning of another witness regarding the statements ( i.e., Gill himself). See, e.g., Valdovinos v. McGrath, 598 F.3d 568, 574-76 (9th Cir. 2010), judgment vacated on other grounds for reconsideration, 131 S.Ct. 1042 (2011), prior relevant holding adhered to in unpublished decision, 2011 WL 996660, slip op. at *722 (9th Cir., Mar. 22, 2011) ( Brady claim and related ineffective-assistance claim based upon failure to disclose additional items of exculpatory evidence related back to prior claims regarding nondisclosure of other items of exculpatory evidence); see also Rodriguez v. Adams, 545 Fed.Appx. 620 (9th Cir. Nov. 18, 2013) (later claim that counsel was ineffective for failing to investigate the testimony of two potential exculpatory witnesses who were present at the scene related back to earlier claim that counsel was ineffective for failing to investigate the testimony of three other witnesses who also were present at the scene).
Amended Ground 2(a) accordingly relates back to original Ground 2 and original Ground 5, whether looked at separately or instead together. Ground 2(a) therefore is timely.
C. Ground 6
In Ground 6, petitioner alleges that he was denied effective assistance of trial counsel because counsel failed to move to suppress evidence obtained from the search of his car because of allegedly unreliable information contained in the search warrant. Petitioner alleges in particular that counsel should have sought suppression on the basis that co-defendant Kevin Gill's statement used as a basis for the search warrant was unreliable because he was under the influence of drugs at the time.
Although the question is a closer one, the Court is persuaded that amended Ground 6 relates back to original Ground 8. In original Ground 8, petitioner alleged that trial counsel should have sought suppression for lack of a supporting affidavit establishing the grounds for issuing the search warrant and that counsel failed to verify the validity of the search warrant. The amended claim relates back to the operative facts of counsel's failure to verify the validity of the search warrant and to challenge whether the warrant was properly factually supported. Cf. Valdovinos, supra ; Rodriguez, supra. 
Amended Ground 6 therefore relates back to original Ground 8 and is timely.
D. Ground 7
In Ground 7, petitioner alleges that he was denied effective assistance of trial counsel during the plea bargaining process because counsel abandoned pursuit of a plea bargain that would have been more favorable to petitioner than the later trial outcome. This ground relies upon the Supreme Court decision in Lafler v. Cooper, 132 S.Ct. 1376 (2012), and it follows upon petitioner's efforts to timely assert the claim pro se.
The timeliness of this ground must be assessed against the backdrop of the early procedural history in this federal action.
Petitioner constructively filed the original petition by mailing his papers to the Clerk on or about May 24, 2012.
At that time, the one-year federal limitation period would not expire until October 11, 2012, absent other tolling or delayed accrual.
On August 13, 2012, the Court issued an order that in the main directed service and a response to the pro se original petition. The order additionally included the following advisement to the pro se petitioner:
.... A petition for federal habeas corpus should include all claims for relief of which petitioner is aware. If petitioner fails to include such a claim in his petition, he may be forever barred from seeking federal habeas relief upon that claim. See 28 U.S.C. §2254(b) (successive petitions). If petitioner is aware of any claim not included in his petition, he should notify the court of that as soon as possible, perhaps by means of a motion to amend his petition to add the claim.
Dkt. no. 5, at 2, lines 3-8 (emphasis added).
As the italicized emphasis reflects, the Court: (a) told petitioner only that he should "notify" the Court and only "perhaps" by a motion for leave to amend if he had additional claims; (b) told him that he should do so only "as soon as possible" without setting any particular deadline; and (c) did not indicate that he actually needed to act not merely "as soon as possible" but instead by an October 11, 2012, hard deadline - only two months away - to properly preserve claims as against the federal time-bar.
Petitioner did, in fact, notify the Court that he had another claim that he wished to pursue, the Lafler claim. He did so exceedingly promptly, mailing his paper for filing on September 10, 2012, less than thirty (30) days after entry of the August 13, 2012, order. And he notified the Court of the additional claim in response to the order within the federal limitation period.
However, he did not notify the Court of the additional claim specifically via a motion for leave to amend the petition. He instead notified the Court of the additional claim via a motion to stay the action so that he could return to state court to exhaust a Lafler claim. Petitioner attached with the motion an exhibit in which he set forth his entire Lafler ground in the same manner as one would do in a petition. The only difference was that the three-page ground was not set forth within a document styled as a pleading.
At no time did the Court expand on the prior advisement in the August 13, 2012, order to inform the pro se petitioner that his September 10, 2012, motion to stay that he filed promptly in response to that order might not "notify" the Court of the claim in a manner sufficient to preserve the claim by the October 11, 2012, limitation period deadline.
On February 22, 2013, after the expiration of the federal limitation period, the Court denied the stay without prejudice and granted petitioner's motion for reconsideration of its prior denial of ...