United States District Court, D. Nevada
ANDREW P. GORDON, District Judge.
Before the court are the first amended petition for writ of habeas corpus (#31), respondents' motion to dismiss (#34), petitioner's opposition (#39), and respondents' reply (#43). The court finds that some grounds are untimely and that some grounds have not been exhausted in the state courts. The court grants the motion in part.
After a jury trial in state district court, petitioner was convicted of conspiracy to commit murder, conspiracy to commit burglary, and first-degree murder with the use of a deadly weapon. Petitioner appealed, and the Nevada Supreme Court affirmed on December 10, 2010. Ex. 63 (#13). For the purposes of the one-year period of limitation for commencing a habeas corpus petition, the judgment of conviction became final after March 10, 2011, when the time to petition the Supreme Court for a writ of certiorari expired. See 28 U.S.C. § 2244(d)(1)(A), Sup.Ct. R. 13(1). Two hundred thirty-five (235) days later, on October 31, 2011, petitioner filed a post-conviction habeas corpus petition in state district court. Ex. 69 (#13). The state habeas corpus petition tolled the federal one-year period pursuant to 28 U.S.C. § 2244(d)(2). The state district court denied the petition. Petitioner appealed, and the Nevada Supreme Court affirmed on July 25, 2012. Ex. 80 (#12). Remittitur issued on August 20, 2012. Ex. 81 (#12). The one-year period resumed the next day. Seventeen (17) days later, on September 6, 2012, petitioner mailed his original, proper person federal habeas corpus petition (#6) to this court. In sum, two hundred fifty-two (252) non-tolled days had passed since the finality of the judgment of conviction, and the original petition (#6) was timely.
The federal petition did not toll the period of limitation. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). On December 29, 2012, the one-year period expired. On March 26, 2013, petitioner filed a motion for appointment of counsel (#18). The court granted the motion on April 8, 2013, and provisionally appointed the Federal Public Defender. The Federal Public Defender could not represent petitioner because a conflict of interest existed. On April 17, 2013, the court appointed petitioner's current counsel. On November 14, 2013, after an extension of time, petitioner filed the first amended petition (#31).
Because the first amended petition was filed after expiration of the one-year period, the grounds in the first amended petition need to relate back to the timely original petition (#6). Relation back, pursuant to Rule 15© of the Federal Rules of Civil Procedure, is allowed "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts...." Mayle v. Felix, 545 U.S. 644, 664 (2005).
Respondents argued initially that grounds 1, 2, 3, 12, 13, 14, and 15 of the first amended petition (#31) do not relate back to the original petition (#6). Petitioner concedes that ground 3 does not relate back, and respondents concede that ground 13 does relate back.
Ground 1 of the first amended petition is a claim that the evidence was insufficient to support the verdict of murder because the evidence showed that the victim received superficial stab wounds and in fact died because of improper medical treatment. Petitioner argues that this relates back to Grounds 1, 4, and 6 of original petition. Ground 1 of the original petition states nothing about the superficial stab wounds and a botched surgery. Ground 4 of the original petition has a vague and conclusory allegation that nobody died on the day of the incident, but again states nothing about superficial stab wounds and a botched surgery. Ground 6 of the original petition, a claim of ineffective assistance of counsel, does lay out the facts that the injuries to the victim were not serious and that the victim died due to a bad reaction to the anesthesia after an unnecessary surgery, inhaling his own vomit and then dying of pneumonia ten days later. These are facts of the same time and type as alleged in ground 1 of the amended petition. See Felix, 545 U.S. at 650. Even though the legal theories of the two grounds differ, that difference is not relevant for the purposes of relation back. Consequently, ground 1 of the amended petition relates back to the original petition.
Ground 2 of the first amended petition is a claim that a crime for which petitioner was convicted, conspiracy to commit burglary, is inconsistent with a crime for which petitioner was acquitted, burglary. Petitioner argues that this relates back to grounds 1 and 4 of original petition. Ground 1 of the original petition has nothing about the charges or burglary or conspiracy to commit burglary. Petitioner does discuss the propriety of the charge of conspiracy to commit murder, but those are different facts. Ground 4 of the original petition has nothing about the charges of burglary or conspiracy to commit burglary. Consequently, ground 2 of the amended petition does not relate back and is untimely.
Ground 12 of the amended petition is a claim of ineffective assistance of trial counsel because trial counsel did not move to dismiss the charges of murder and conspiracy to commit murder. Petitioner argues that this ground relates back to grounds 1, 4, and 6 of original petition. Ground 12 of the amended petition relates back to the original petition for the same reason why ground 1 of the amended petition relates back.
Ground 14 of the amended petition is a claim of ineffective assistance of counsel because counsel did not move to suppress both fingerprint evidence obtained from an anonymous tip and evidence obtained by a telephonic search warrant that lacked probable cause. Petitioner argues that it relates back to grounds 8(1), 4, and 5 of original petition. In ground 8(1) of the original petition, petitioner claims that counsel failed to argue adequately a motion to suppress based upon the Fourth Amendment, but he does not allege any underlying facts. Ground 4 of the original petition is a claim that counsel provided ineffective assistance because counsel did not argue that the fingerprint evidence found at the scene of the crime was insufficient to support the verdict. Ground 5-B of the original petition is a claim that counsel provided ineffective assistance because counsel did not retain a fingerprint expert to testify about the condition, placement, and direction of the fingerprints found at the scene of the crime. A mention of the Fourth Amendment in one ground, without supporting facts, and arguments about the fingerprint evidence found at the scene of the crime in other grounds, are not the same facts in time and type as the fact supporting a claim that counsel should have moved to suppress the fingerprint evidence collected elsewhere from petitioner. Consequently, ground 14 of the amended petition does not relate back and is untimely.
Ground 15 of the amended petition is a claim of ineffective assistance of counsel because trial counsel did not move to suppress petitioner's statement to police detectives, based upon a violation of the Fifth Amendment. Petitioner argues that this ground relates back to ground 8(4) of original petition. Ground 8(4) is more conclusory than this ground, but the two share a common core of operative facts: Petitioner made a statement to police, and counsel did not try to keep it from being admitted at trial. Ground 15 relates back to the original petition.
The court is not persuaded by petitioner's arguments for equitable tolling. "[A] petitioner' is entitled to equitable tolling' only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
First, the court is not persuaded that petitioner's incarceration in a prison with limited access to the prison law library, his general lack of knowledge of American criminal procedures, and his limited English proficiency prevented him from filing a timely federal habeas corpus petition, because petitioner did in fact file a timely federal habeas corpus petition.
Second, regarding the untimely claims in the amended petition, the court cannot conclude that either extraordinary circumstances existed or that petitioner was diligent. Petitioner did not ask for the court to appoint counsel until March 26, 2013, by which time the period of limitation had expired around three (3) months earlier. Even if the appointment of counsel was an extraordinary circumstance, for example, to find counsel without a conflict of interest and then to allow counsel to become familiar with the case, it still would not avail petitioner because ...