United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This is an action for habeas relief under 28 U.S.C. § 2254 brought by Charles McNelton, a Nevada prisoner sentenced to death. Respondents have filed a motion to dismiss McNelton's second amended petition for writ of habeas corpus. ECF No. 146. As the bases for their motion, respondents contend that numerous claims in the petition are time barred by 28 U.S.C. § 2244(d) and/or barred by the doctrine of procedural default. Respondents also argue that some of McNelton's claims are not cognizable in an action brought under § 2254.
McNelton has filed an opposition to the motion (ECF No. 165) and a motion for an evidentiary hearing (ECF No. 163).
Having considered the parties' arguments and relevant portions of the record, the court concludes as follows.
I. Procedural History
On October 8, 1993, after a five-day trial, a jury in the Eighth Judicial District Court for Nevada found McNelton guilty of one count of first-degree murder with the use of a deadly weapon. After a three-day penalty hearing, the jury found two aggravating circumstances: (1) the murder was committed by a person who was previously convicted of felonies involving the use or threat of violence to the person of another and (2) the murder was committed by a person under a sentence of imprisonment. The jury imposed a sentenced of death.
The Nevada Supreme Court affirmed his conviction and sentence in a published opinion. McNelton v. State, 900 P.2d 934 (Nev. 1995). McNelton's petition for certiorari with respect to that decision was denied by the U.S. Supreme Court on May 20, 1996. McNelton v. Nevada, 517 U.S. 1212 (1996). On August 6, 1996, McNelton filed a post-conviction petition for writ of habeas corpus in the state district court. After the district court appointed counsel, McNelton filed several supplemental pleadings. The court held an evidentiary hearing on April 3, 1998, and entered a decision on May 18, 1993, denying all of McNelton's claims. McNelton appealed.
The Nevada Supreme Court affirmed the denial of McNelton's petition in a published opinion. McNelton v. State, 990 P.2d 1263 (Nev. 1999). The remittitur issued on March 17, 2000. On March 7, 2000, McNelton filed a federal habeas petition. After prolonged discovery proceedings, McNelton filed an amended petition on November 16, 2006.
On April 16, 2007, the respondents filed a motion to dismiss the amended petition on the ground that it contains several unexhausted claims. In lieu of filing an opposition to that motion, McNelton filed a motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). That motion was granted.
On October 12, 2007, McNelton filed a second post-conviction petition for writ of habeas corpus in state court. After being amended once, that petition was denied. McNelton appealed. After the Nevada Supreme Court affirmed the denial of his petition, McNelton unsuccessfully sought rehearing. The remittitur issued on March 5, 2013.
On April 4, 2013, McNelton moved to reopen these proceedings. After that motion was granted, McNelton filed, on September 27, 2013, the second-amended petition that is the subject of the motion to dismiss currently before the court.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year filing period for § 2254 habeas petitions in federal court. 28 U.S.C. § 2244(d)(1). The one-year period begins to run from the latest of four possible triggering dates, with the most common being the date on which the petitioner's state court conviction became final (by either the conclusion of direct appellate review or the expiration of time for seeking such review). Id. Statutory tolling of the one-year time limitation occurs while a "properly filed" state post-conviction proceeding or other collateral review is pending. 28 U.S.C. § 2244(d)(2).
Respondents concede that McNelton filed his initial petition herein within the one-year filing period under § 2244(d)(1). Respondents argue, however, that McNelton's first and second amended petitions were filed after the one-year period had elapsed. They further argue that several of the habeas claims in his second amended petition are time-barred from federal court review because those claims do not "relate back" to the initial petition.
The Supreme Court's decision in Mayle v. Felix, 545 U.S. 644 (2005), significantly limits a habeas petitioner's ability to have newly-added claims "relate back" to the filing of an earlier petition and, therefore, be considered timely under 28 U.S.C. § 2244(d). In Mayle, the Court held that the Ninth Circuit's former relation-back standard under Federal Rule of Civil Procedure 15(c)(2) (now Rule 15(c)(1)(B)),  which allowed an amendment to a habeas petition to "relate back" to the date of the original petition "so long as the new claim stems from the habeas petitioner's trial, conviction, or sentence, " was too broad. Id. at 656-57. The Court held that an amended claim in a habeas petition relates back for statute of limitations purposes only if it shares a "common core of operative facts" with claims contained in the original petition. Id. at 663-64. The common core of operative facts must not be viewed at too high a level of generality, and an "occurrence, " for the purposes of Fed.R.Civ.P. 15(c), will consist of each separate set of facts that supports a ground for relief. Id. at 661.
According to the respondents, Claims Two, Three, Four(B), Five(D), Six(A), Six(I), Six(J), Seven, Nine, Ten, part of Eleven(F), Twelve(A-B), part of Fourteen, Sixteen, Seventeen, Eighteen and Nineteen are untimely because they do not "relate back" to the initial petition.
McNelton raises several arguments as to why some or all of his claims are not time-barred. First, he contends that, due to a variety circumstances, he is entitled to equitable tolling of the statute of limitations. According to McNelton, these circumstances include (1) his reliance on this court's scheduling orders and its "standard procedure" for adjudicating capital cases in effect at the time he initiated this proceeding in 2000, (2) the State's dilatory conduct during discovery proceedings, and (3) delays brought about by lack of counsel or change of counsel.
The Supreme Court has held that, in appropriate cases, equitable tolling is applicable to the statute of limitations imposed by § 2244(d). Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). Under Holland, a habeas petitioner is entitled to equitable tolling only if he can show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (internal quotation marks omitted). The application of equitable tolling is "highly fact-dependent." Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005).; Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000); see also Holland, 130 S.Ct. at 2565 ("often fact-intensive"). "[T]he threshold necessary to trigger equitable tolling... is very high, lest the exceptions swallow the rule." Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002), and United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)).
McNelton's conviction became final for the purposes of triggering the one-year statutory period on May 20, 1996, the date on which the Supreme Court denied his petition for certiorari in relation to his direct appeal. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001) (noting that judgment becomes "final" either by the conclusion of direct review by the highest court, including the United States Supreme Court, to review the judgment, or by the expiration of the time to seek such review). Under 28 U.S.C. § 2244(d)(2), the statutory period was tolled from August 7, 1996, until March 17, 2000, while his first state collateral review proceeding was pending. Accordingly, the one-year filing period elapsed for McNelton on December 29, 2000, approximately a month before the court entered its first scheduling order (ECF No. 7).
Pursuant to this court's appointment, the Federal Public Defender for Nevada (FPD) appeared as counsel for McNelton in this action on May 10, 2000. ECF Nos. 5/6. Consistent with the common procedure in effect at the time, this court entered scheduling orders that set aside considerable time for petitioner to gather and review the record and to conduct discovery, if authorized, prior to deciding whether to file an amended petition. ECF Nos. 7/14. And, as often occurred in this court's capital habeas cases, discovery proceedings extended well beyond the initial time-frame established by the court. The court granted numerous extensions for time in relation to both discovery proceedings and the deadline for the amended petition, most of which were pursuant to a stipulation by the parties. Consequently, McNelton's first amended petition was filed approximately five years after the initial deadline set by the court.
Because the statutory period had expired prior to the issuance of the first scheduling order, McNelton cannot plausibly argue that this court's scheduling orders were responsible for the untimely filing of his claims. Moreover, an order that simply sets forth a filing date for an amended petition comes with no assurance that new claims for relief in that petition will relate back to the initial petition for timeliness purposes. The same goes for orders that merely extend that filing date.
McNelton is correct that, at the time he initiated this action, the common procedure of this court in capital habeas cases was to allow counsel to spend a considerable amount of time engaging in pre-amendment activities, such as record review, investigation, and authorized discovery. Moreover, there is little question that, prior to the Supreme Court's decision in Mayle on June 23, 2005, both parties to this action were proceeding based on the assumption that the claims in McNelton's amended petition, when filed, would not be subject to dismissal under § 2244(d).
Unfortunately for McNelton, whatever representations this court may have made to him at the time, in relation to its standard practice or otherwise, will not provide grounds for equitable tolling absent a showing that they "affirmatively misled" him. See Ford v. Pliler, 590 F.3d 782, 786 (9th Cir. 2009). In Ford, the district court had denied the petitioner's motion to stay his partially unexhausted petition and gave him the following three options: (1) to dismiss his petitions without prejudice and then, after exhausting in state court the previously unexhausted claims, to re-file in federal court; (2) to dismiss the unexhausted claims and present the federal court with only his exhausted claims; or (3) to demonstrate that all of his claims had already been exhausted in state court. Id. at 785. Ford chose the first option. Id. When he returned to federal court post-exhaustion, his petition was untimely and, as such, dismissed with prejudice. Id.
In construing the Supreme Court's opinion in the case above ( Pliler v. Ford, 542 U.S. 225 (2004)), the court of appeals held that Ford was not affirmatively misled, and thus not entitled to equitable tolling, even though the one-year limitation period had already expired when the district court had given him the three options listed above. Id. at 786-88. The court noted that, "[i]n order to show that he was affirmatively misled, Ford needed to point to some inaccuracy in the district court's instructions." Id. at 788. McNelton has likewise failed to identify an affirmative misstatement in this court's instructions to him. While McNelton may have justifiably assumed that he was free to amend his initial petition without timeliness concerns, at no point did the court indicate to him that any new claims added after December 29, 2000, would necessarily relate back to that petition for the purposes of 28 U.S.C. § 2244(d).
McNelton attempts to analogize his situation to that of the petitioner in Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2013). In Sossa, the court of appeals held that the lower court should have granted equitable tolling to a pro se habeas petitioner who had sought and obtained extensions of time to file an amended petition beyond the statutory deadline. 729 F.3d at 1235. The court reasoned that Sossa's request to extend the due date for his amended petition was premised "on the understanding that if the request were granted and [he] filed his amended petition by the new due date, the petition would be deemed timely, " and that "[b]y granting Sossa's request..., the magistrate judge conveyed that the premise of Sossa's request was accurate." Id. at 1233. According to the court in Sossa, "the magistrate judge's order granting Sossa's extension request affirmatively misled him in the very manner that the Supreme Court's decision in Pliler v. Ford,  and our decisions in Ford and Brambles,  require." Id. (footnotes added).
Important factors in Sossa distinguish it from this case. As noted by the court in Sossa, "grounds for equitable tolling under § 2244(d) are highly fact-dependent'" and "the Supreme Court has made clear that often the exercise of a court's equity powers... must be made on a case-by-case basis.'" Id. at 1229 (citations omitted). Proceeding without counsel and with limited access to legal resources,  Sossa filed his amended petition only eighteen days after the statutory deadline. In addition, Sossa's initial petition contained no substantive claims. A decision to deny equitable tolling in Sossa, and in Prieto v. Quarterman, 456 F.3d 511 (5th Cir. 2006) (a case heavily relied upon in Sossa ), would have meant the complete dismissal of the petitioner's case, an unreasonable result under the circumstances. Cf. Rhines v. Weber, 544 U.S. 269, 278 (2005) (recognizing that, when an exhaustion stay is not appropriate, the court should allow the petitioner to delete the unexhausted claims "if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief"). In both cases, the court of appeals found that the lower's orders extending time to file an amended petition were "crucially misleading." Sossa, 729 F.3d at 1233.
Here, McNelton's timely initial petition contains numerous substantive claims. Counsel appeared on his behalf in this case with more than seven months remaining of the one-year statutory filing period. The court entered no scheduling orders (much less "crucially misleading" ones) prior to the expiration of the period. Moreover, McNelton filed his first amended petition seventeen months after the decision in Mayle clarified the relation back doctrine as applied to habeas cases (and at least five months after discovery proceedings had been completed (see ECF No. 88)). Even if it were to accept that its scheduling of proceedings herein misled McNelton, this court is not convinced that McNelton pursued his rights diligently. See Holland, 560 U.S. at 649.
The court also rejects McNelton's argument that the State's alleged dilatory conduct in complying with discovery requests is a factor that should be considered in determining whether he is entitled to equitable tolling. For reasons mentioned above, the State's conduct in complying with discovery requests is not causally connected to the timeliness of McNelton's claims. As for the changes in federal habeas counsel, McNelton has been represented throughout these proceedings by the FPD. Mere changes in the FPD staff members assigned to his case do not qualify as an "extraordinary circumstance" that warrants equitable tolling.
McNelton also argues that his claims are not time-barred because the State waived the statute of limitations as a procedural defense. He contends that this case is "materially indistinguishable" from Wood v. Milyard, 132 S.Ct. 1826 (2012), a case in which it was found that the state had deliberately waived a challenge to the timeliness of a habeas petition.
In Wood, the Supreme Court reversed the Tenth Circuit's sua sponte decision to raise on appeal the timeliness of a habeas petition and then dismiss the petition as untimely, after the state had expressly declined to oppose the petition on that ground before the district court and the district court had ruled upon the merits of the petition. Wood, 132 S.Ct. at 1829, 1834-35. McNelton's arguments notwithstanding, the holding in Wood speaks primarily to the court of appeals exceeding the scope of its appellate review and says very little about what constitutes a waiver of the statute of limitations as a procedural defense in a habeas case. The Court was particularly bothered by the fact that the court of appeals had sua sponte disposed of the case on timeliness grounds when the lower court had expended the time and resources necessary to resolve the case on the merits. See Wood, 132 S.Ct. at 1834 ("When a court ...