United States District Court, D. Nevada
CHRISTOPHER A. JONES, Petitioner,
E.K. McDANIEL, et al., Respondents.
LARRY R. HICKS, District Judge.
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel. Before the Court is respondents' motion to dismiss Ground 7 of the second amended petition. (ECF No. 40). Also before the Court is petitioner's combined motion for leave to supplement the opposition to the motion to dismiss, and motion for reconsideration of the dismissal of Ground 8 of the second amended petition. (ECF No. 48).
I. Procedural History
A. State Court Proceedings (1995-2001)
Petitioner was charged, in Nevada's Eighth Judicial District, with one count of first degree murder with the use of a deadly weapon, two counts of attempted murder with the use of a deadly weapon, and three counts of discharging a firearm at or into a structure. (Exhibit 4.) At the jury trial, petitioner was found guilty of first degree murder and was found not guilty as to all other counts. (Exhibits 40-41). After the guilty verdict, petitioner entered into a stipulation with the State wherein he waived his right to a direct appeal and a separate penalty hearing; he stipulated to a sentence of life with the possibility of parole for first degree murder, and a consecutive sentence of life with the possibility of parole for the deadly weapon enhancement. (Exhibit 43). On June 25, 1996, the state trial court adjudged petitioner guilty of first degree murder with use of a deadly weapon and sentenced him according to the stipulation of the parties. (Exhibit 48). The judgment of conviction was filed on July 1, 1996. (Exhibit 49).
Petitioner did not pursue a direct appeal. On April 22, 1997, petitioner, acting in pro per, filed a "motion to withdraw from stipulation and order waiving separate penalty hearing and waiving appeal" (motion to withdraw stipulation), along with an affidavit, and points and authorities. (Exhibits 56, 57, 59). On May 14, 1997, petitioner filed a pro per post-conviction habeas petition in the state district court, along with points and authorities. (Exhibits 68 and 69). The State filed a combined opposition to the motion to withdraw stipulation and to the postconviction habeas petition. (Exhibit 71). On June 12, 1997, the state district court filed findings of fact, conclusions of law, and order denying the post-conviction habeas petition. (Exhibit 74). In the order, the state district court noted that the post-conviction habeas petition raised the same claims of error as petitioner raised in his motion to withdraw stipulation. (Exhibit 74, at p. 3). On the same date, the state district court entered an order denying petitioner's motion to withdraw stipulation. (Exhibit 76).
On July 9, 1997, petitioner filed a notice of appeal of the denial of his post-conviction habeas petition to the Nevada Supreme Court. (Exhibit 78). Petitioner filed his opening brief on December 15, 1997. (Exhibit 87). Nearly three years later, on September 8, 2000, petitioner sought leave to file additional pages and an amended brief adding additional grounds to the original opening brief. (Exhibits 88, 89, and 90). The Nevada Supreme Court stamped these documents "received" on September 8, 2000. (Exhibit 90). On September 11, 2000, one business day after it received petitioner's motion to amend and amended brief, the Nevada Supreme Court entered its order dismissing the appeal. (Exhibit 91). Rehearing was denied on December 29, 2000. (Exhibit 93). Remittitur issued on January 17, 2001. (Exhibit 94).
B. Initial Federal Habeas Petition (2001-2003)
Petitioner's federal habeas petition was filed on January 18, 2001, in case number CV-N-01-0038-DWH-VPC ( Jones I ). (ECF No. 2 in Jones I ). The Court appointed the Federal Public Defender to represent petitioner in the federal habeas proceedings. (ECF No. 5). On February 21, 2002, through his counsel, petitioner filed a first amended petition setting forth eight grounds for relief. (ECF No. 15). Through counsel, petitioner filed a second amended petition on April 9, 2002, again seeking eight grounds of relief. (ECF No. 26). Respondents moved to dismiss the petition, asserting that Grounds 2 and 8 were not exhausted in state court. (ECF No. 33). On February 25, 2003, this Court granted respondents' motion in part, ruling that Grounds 2 and 8 were not exhausted. (ECF No. 37). On October 3, 2003, this Court dismissed this action without prejudice to allow petitioner to return to state court to exhaust Grounds 2 and 8. (ECF No. 46). The case was administratively closed without entering judgment, with a provision for petitioner to return to federal court after exhausting his claims in state court. ( Id. ).
C. First Return to State Court (2003-2005)
Petitioner returned to the Eighth Judicial District Court of Nevada and filed his second postconviction habeas petition on November 19, 2003, raising three grounds for relief: (1) a due process violation resulting from improper commentary, personal opinions, and disparagement of the defense in the prosecutor's closing arguments; (2) denial of effective assistance of counsel because there was no objection to the prosecutor's closing arguments; and (3) denial of effective assistance of counsel because counsel failed to file a notice of appeal on petitioner's behalf. (Exhibit 102). On June 11, 2004, the state district court entered its findings of fact, conclusions of law, and order denying the post-conviction habeas petition. (Exhibit 109). Petitioner appealed and the Nevada Supreme Court entered an order of affirmance on March 29, 2005. (Exhibits 110 and 114). Remittitur issued on May 5, 2005. (Exhibit 115).
D. Federal Habeas Proceedings (2005-2008)
Petitioner returned to this Court with a motion to reopen his federal habeas corpus action. By order filed October 26, 2005, this Court granted petitioner's motion to re-open and assigned the action the new case number 3:05-CV-0582-LRH-VPC ( Jones II ). (ECF No. 1, in Jones II ). On November 30, 2005, an amended petition was filed incorporating the newly exhausted grounds for relief and supplementing the record. (ECF No. 2; ECF No. 3). On February 13, 2006, respondents filed a motion to dismiss the petition, asserting that Grounds 2-6, 8, and 9 of the petition were procedurally defaulted. (ECF No. 8). By order filed July 19, 2006, this Court granted the motion, finding that Grounds 2, 3, 4, 5, 6, 8, and 9 of the amended petition were procedurally defaulted in state court, and that petitioner had not made a showing of cause to excuse the procedural default. (ECF No. 10). Grounds 2, 3, 4, 5, 6, 8, and 9 of the amended petition were dismissed with prejudice. ( Id. ). Respondents were directed to file an answer to the remaining claims in the amended petition, Grounds 1 and 7. ( Id. ).
On October 18, 2006, respondents filed a motion to dismiss Ground 7 of the amended petition on the basis that it was unexhausted. (ECF No. 15). On August 23, 2007, this Court ruled that Ground 7 was unexhausted and gave petitioner options for dealing with his mixed petition. (ECF No. 21). Petitioner sought reconsideration of orders filed July 15, 2003, July 19, 2006, and August 23, 2007. (ECF No. 22). By order filed June 2, 2008, the Court denied petitioner's motion for reconsideration and directed petitioner to comply with the Court's order of August 23, 2007, which required petitioner to choose an option for handling unexhausted Ground 7. (ECF No. 23). Petitioner filed a motion seeking a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so that he could return to state court to exhaust Ground 7. (ECF ...