United States District Court, D. Nevada
PHILIP M. PRO, District Judge.
Petitioner Mulder is a Nevada prisoner sentenced to death in 1998 by a jury sitting in the Eighth Judicial District Court for Nevada. Before the court in this federal habeas action are two motions filed by the Mulder - a motion for summary judgment (ECF No. 116) and a motion for stay and abeyance (ECF No. 117).
Relevant procedural history
On September 26, 2011, this federal habeas action was stayed, pursuant to Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003), pending restoration of Mulder's competency. The United States Court of Appeals for the Ninth Circuit Court vacated that order and remanded the case for reconsideration in light of Ryan v. Gonzales, 133 S.Ct. 696 (2013). On May 5, 2013, having determined that Mulder is not entitled to a stay under Gonzales, the court directed the respondents to file a response to Mulder's amended petition for writ of habeas corpus on or before August 1, 2013. The same order also allowed Mulder to move for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005), any time prior to (or on) that date.
On July 29, 2013, Mulder filed a motion for reconsideration of this court's order lifting the competency stay and moved for an extension of time within which to file a motion for stay and abeyance under Rhines. The court granted the request, but noted that it "took dim view of the potential delay that may result." ECF No. 98. On August 1, 2013, respondents complied with the court's scheduling order by filing a motion to dismiss claims in Mulder's amended petition.
On October 23, 2013, this court entered an order denying Mulder's motion for reconsideration and directing him to file a response to the respondents' motion to dismiss by November 22, 2013. On November 7, 2013, Mulder filed a motion for permission to appeal the denial of his motion for reconsideration. When that motion was denied, Mulder filed a petition for a writ of mandamus in the Ninth Circuit Court of Appeals, which was also denied. After seeking several extensions of time, Mulder filed, on January 10, 2014, the motions now pending before the court. The court granted Mulder's request to extend the deadline for his response to the motion to dismiss pending the court's resolution of those motions.
Motion for summary judgment
Mulder moves the court for summary judgment on Claim One of his amended petition - a claim in which he alleges that his Eighth Amendment right to a reliable sentence was violated when the Nevada Supreme Court failed to provide close appellate scrutiny of his death sentence after invalidating two aggravating circumstances. Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, which provides, in relevant part, that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 12 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. § 2254 provides that "[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules."
The last Supreme Court decision to condone the use of summary judgment in habeas proceedings - Blackledge v. Allison, 431 U.S. 63, 80-81 (1977) - was issued before the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") significantly limited the scope of federal habeas corpus review of state court criminal convictions. Since the passage of AEDPA, at least one federal court of appeals has held that the potential conflict between the requirement, under Fed.R.Civ.P. 56, that courts draw all factual inferences in the nonmovant's favor and the AEDPA provision codified at 28 U.S.C. § 2254(e)(1) - which mandates that findings of fact made by a state court are "presumed to be correct" - can be accommodated by allowing the latter to override the former. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.2002), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
Even so, the primary purpose behind summary judgment as a procedural device is to prevent the need for trial over facts that are not legitimately in dispute. See Advisory Committee Notes, Fed.R.Civ.P. 56, 1963 Amendment ("The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."). Indeed, the Court's discussion of summary judgment in Blackledge was in the context of explaining how a habeas proceeding may be resolved in favor of the state without need for an evidentiary hearing even when a habeas petitioner has presented a "set of allegations not on its face without merit." Blackledge, 431 U.S. at 80-81. Since the passage of AEDPA, however, a habeas petitioner is rarely entitled to an evidentiary hearing in any case. Cullen v. Pinholster, 131 S.Ct. 1388, 1411 (2011). Thus, whatever beneficial role summary judgment may have played in habeas proceedings prior to AEDPA is now virtually non-existent.
As a practical matter, this court's analysis of the merits of Claim One in the context of Mulder's summary judgment motion would likely be no different from the analysis the court will employ when it considers Mulder's complete petition. If Claim One were to be denied on the merits now, the court would still be required to adjudicate the remainder of Mulder's petition. On the other hand, if the court were grant relief on the claim, the State would almost certainly appeal, which gives rise to the prospect of even lengthier proceedings should the that decision be eventually reversed.
In light of the foregoing, the court concludes that a motion for summary judgment will not significantly advance the resolution of these proceedings. The motion shall be denied.
Motion for stay and abeyance
Conceding that his amended petition contains claims that have not been exhausted in state court, Mulder asks this court to stay the proceedings herein and hold them in abeyance pending state court exhaustion of his unexhausted claims. In Rhines v. Weber, 544 U.S. 269 (2005), the stay and abeyance procedure was condoned by the Court as a means by which a habeas petitioner with a mixed petition subject to dismissal under Rose v. Lundy, 455 U.S. 509 (1982), could fully exhaust his ...