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Emil v. Baker

United States District Court, D. Nevada

October 2, 2014

RODNEY EMIL, Petitioner,
v.
RENEE BAKER, et al., Respondents.

ORDER

MIRANDA M. DU, District Judge.

I. INTRODUCTION

In this habeas corpus action brought by Nevada prisoner Rodney Emil, the Court, on February 20, 2014, denied Emil's petition, ruling that all the claims in his third amended petition (dkt. no. 49) are barred by either the statute of limitations or the procedural default doctrine, or both. (Dkt. no. 85.)

On March 20, 2014, Emil filed a motion to alter or amend judgment (dkt. no. 87), pursuant to Federal Rule of Civil Procedure 59(e), asking the Court to reconsider certain aspects of the February 20, 2014, order. On April 15, 2014, respondents filed an opposition to that motion (dkt. no. 90). Emil filed a reply on May 6, 2014 (dkt no. 95).

The Court will grant Emil's motion to alter or amend judgment in part, and will deny it in part. The Court will alter and amend the February 20, 2014, order, and resulting judgment, in that certain claims denied in the February 20, 2014, order on both statute of limitations and procedural default grounds will be denied on only statute of limitations grounds. In all other respects, the motion will be denied.

Federal Rule of Civil Procedure 59(e) allows for a motion to alter or amend a judgment to be made within twenty-eight (28) days after the entry of the judgment. Fed.R.Civ.P. 59(e). A Rule 59(e) motion is an "extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.2000). A district court may grant a Rule 59(e) motion if it "is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.'" McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir.1999) (en banc) ( quoting 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999)). "A Rule 59(e) motion may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enters, Inc., 229 F.3d at 890 (emphasis in original).

II. PROCEDURAL DEFAULT

In its February 20, 2014, order, the Court ruled the following of Emil's claims to be procedurally defaulted, and subject to denial on that basis: Claims 1, 2, 3, 4 (to the extent based on trial counsel's alleged failure to cross-examine Victor Gramrosa for bias and alleged failure to collect Lefevre's jail records prior to trial), 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20. See dkt. no. 85 at 39. Emil now argues, in his motion to alter or amend judgment, that the Court should consider the effect of Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), with respect to his procedural default of those claims.

Emil did not make this argument in his reply, when responding to the procedural default defense raised by respondents in their answer. See Answer (dkt. no. 69); Reply (dkt. no. 78). However, Martinez was only decided on March 20, 2012, just eight (8) days before Emil filed his reply. Therefore, under the circumstances, the Court will consider the application of Martinez here, on Emil's Rule 59(e) motion.

In Martinez, the Supreme Court announced an exception to the longstanding rule that ineffective assistance of state post-conviction counsel cannot establish cause to overcome a procedural default. See Martinez, 132 S.Ct. at 1315. The Supreme Court held:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Id. at 1320. "[T]o establish cause' to overcome procedural default under Martinez, a petitioner must show: (1) the underlying ineffective assistance of trial counsel claim is substantial'; (2) the petitioner was not represented or had ineffective counsel during the [state post-conviction] proceeding; (3) the state [post-conviction] proceeding was the initial review proceeding; and (4) state law required (or forced as a practical matter) the petitioner to bring the claim in the initial review collateral proceeding." Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir.2014) (citing Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911, 1918, 185 L.Ed.2d 1044 (2013)).

In Nguyen v. Curry, 736 F.3d 1287 (9th Cir.2013), the Ninth Circuit Court of Appeals held that " Martinez applies to the failure to raise not only a claim of trial-counsel [ineffective assistance of counsel], but also a claim of appellate-counsel [ineffective assistance of counsel]." Nguyen, 736 F.3d at 1289; see Hurles v. Ryan, 752 F.3d 768, 781 (9th Cir.2014). Martinez has not, however, been extended beyond claims of ineffective assistance of trial or appellate counsel.

Emil's citation to Martinez, and his claim that ineffective assistance of his state post-conviction counsel is cause for the procedural default of the ineffective assistance of counsel claims in his third amended petition, calls into question the Court's procedural default rulings regarding the following claims: the ineffective assistance of counsel claims in Claim 4 relative to the cross-examination of Victor Gramrosa and relative to Michael Stewart Lefevre's jail records; all of Claim 5; all of Claim 6; the ineffective assistance of counsel claims in Claim 7; the ineffective assistance of counsel claims in Claim 8; the ineffective assistance of counsel claims in Claim 9; the ineffective assistance of counsel claims in Claim 10; the ineffective assistance of counsel claims in Claim 11; the ineffective assistance of counsel claims in Claim 12; the ineffective assistance of counsel claims in Claim 13; the ineffective assistance of counsel claims ...


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