United States District Court, D. Nevada
BARBARA A. PINKSTON, Petitioner,
SHERYL FOSTER, et al., Respondents.
KENT J. DAWSON, District Judge.
This represented habeas matter comes before the Court on petitioner's motion (#59) for leave to file an amended petition and petitioner's associated motion (#65) for an extension of time to file a reply memorandum. Petitioner seeks to amend the petition to add a claim that the failure to apply subsequent authority changing the law to a case such as hers that was not final at the time of the decision changing the law violated petitioner's right to due process pursuant to Bunkley v. Florida, 538 U.S. 835 (2003).
Petitioner Barbara Pinkston seeks to set aside her 1997 Nevada state conviction, pursuant to a jury verdict, of first degree murder with the use of a deadly weapon.
In Ground 3, petitioner alleges that she was denied due process in violation of the Fifth and Fourteenth Amendments because the trial court's jury instructions allegedly failed to adequately distinguish between the elements of malice aforethought, premeditation, and deliberation. The instruction given in petitioner's case constituted what is referred to under Nevada state practice as a Kazalyn instruction, as a substantially similar instruction first appeared in a published decision in Kazalyn v. State, 108 Nev. 67, 825 P.2d 578 (1992). The Supreme Court of Nevada later concluded in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), that the Kazalyn instruction "blur[red] the distinction between first- and second-degree murder" by not sufficiently distinguishing between the distinct elements of deliberation and premeditation. See 116 Nev. at 235, 994 P.2d at 713.
This Court granted a conditional writ of habeas corpus based on its holdings that Ground 3 was technically exhausted by procedural default and that petitioner could establish cause and prejudice to overcome the procedural default of the claim based upon ineffective assistance of appellate counsel on direct appeal in failing to raise the challenge to the Kazalyn instruction based upon the federal constitutional claim. The Court held that the underlying due process claim had merit under the Ninth Circuit's holding in Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), that the Kazalyn instruction violated due process.
The Ninth Circuit reversed and remanded.
During the appeal in this case, the Ninth Circuit held in Babb v. Lozowsky, 719 F.3d 1019 (9th Cir. 2013), that the state supreme court's intervening decision in Nika v. State, 124 Nev. 1272, 198 P.3d 839 (2008), had "effectively overruled" Polk. 719 F.3d at 1029. The Babb panel further held, however, that the failure to apply the Byford instruction to cases that were not final at the time Byford was decided violates due process, relying upon, inter alia, Bunkley. 719 F.3d at 1030-33.
In the present case, the Ninth Circuit stated that, under the intervening authority in Babb, "[t]he holding in Polk that the Kazalyn instruction violated federal due process no longer dictates a finding that the claim would have won on these grounds." #52, at 5. The Court of Appeals held that petitioner could not demonstrate ineffective assistance of appellate counsel in failing to raise the federalized claim to overcome the procedural default of the claim.
On remand, petitioner seeks to amend to add a claim based upon Bunkley that the failure to apply Byford to her case, which was not final at the time, violated her right to due process pursuant to Bunkley.
The Court is not persuaded that the Ninth Circuit's remand for "further consideration of the remaining grounds of Pinkston's petition" precludes the petitioner from adding to those grounds by amendment on remand. The Court makes no determination at this juncture as to whether amending to add such a closely related amended ground - which could have been presented previously when litigating the closely related due process claim in Ground 3 - itself is barred by law of the case.
There of course is a substantial question as to whether petitioner can present an ultimately viable Bunkley claim in this action.
On the one hand, if the Bunkley claim arguendo also is technically exhausted by pro assistance of appellate counsel to overcome that default, assuming arguendo exhaustion also of that claim. On appeal, the Ninth Circuit held that appellate counsel "is not required to anticipate that state law may change and that state courts will fail to apply that change appropriately such that the defendant will have to seek a remedy through federal habeas proceedings." #52, at 6-7. Reliance on ineffective assistance of appellate counsel to overcome a procedural default of the Bunkley claim essentially would ask appellate counsel back in 2000 to have had the further prescience to base a federal due process claim on Supreme Court authority that would not be on the books for three more years. Cf. Babb, 719 F.3d at 1032 ("While Griffith alone would not be sufficient to invalidate Babb's conviction ...