United States District Court, D. Nevada
For Myrdus Archie, also known as, Mary Smith, Petitioner: Todd M Leventhal, LEAD ATTORNEY, Leventhal and Associates, Las Vegas, NV.
For Sheryl Foster, Warden, Respondent: Michael Bongard, LEAD ATTORNEY, Office of Attorney General, Ely, NV.
For Attorney General of the State of Nevada, Respondent: Michael Bongard, LEAD ATTORNEY, Office of Attorney General, Ely, NV; Catherine Cortez-Masto, Nevada Attorney General's Office, Carson City, NV.
Roger L. Hunt, United States 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 partially dismiss the amended petition. (ECF No. 37).
I. Procedural History
On September 10, 2003, the State filed an amended complaint in the Las Vegas Township Justice Court, charging petitioner and her co-defendant with Count 1, conspiracy; Count 4, robbery with a deadly weapon; Count 5, murder with a deadly weapon; Count 6, robbery with a deadly weapon; and Count 7, attempted murder with a deadly weapon. (Exhibit A). At the conclusion of the preliminary hearing on October 27, 2003, the justice of the peace bound petitioner and her co-defendant over to the district court. (Exhibit 20B). On November 6, 2003, the State filed a criminal information in the Eighth Judicial District Court for the State of Nevada, charging petitioner with the same crimes as alleged in the amended criminal complaint. (Exhibit 19). At her arraignment on November 18, 2004, petitioner entered a plea of not guilty. (Exhibit B).
On September 8, 2004, petitioner filed a motion to sever. (Exhibit C). On November 18, 2003, petitioner filed a second motion to sever her case from that of her co-defendant. (Exhibit D). The trial court denied the motions to sever in an order filed February 2, 2005. (Exhibit E).
Petitioner's trial was held January 2, 2007, through January 24, 2007. (Exhibits 21-23B; Exhibits 25-34). The jury rendered guilty verdicts against petitioner for conspiracy, two counts of robbery with a deadly weapon, attempted murder with a deadly weapon, and second degree murder with a deadly weapon. (Exhibit 35).
Petitioner was sentenced on March 13, 2007. (Exhibit 37). The trial court found that petitioner was a habitual criminal offender and sentenced her to the following: Count 1, 24-60 months imprisonment; Count 3, life without parole consecutive to Count 1; Count 4, life without parole, concurrent with Count 3; Count 5, life without parole to run consecutive to all other counts; Count 6, life without parole to run consecutive to all other counts. (Exhibit 44). The judgment of conviction reflecting petitioner's convictions and sentences was filed on March 27, 2007. (Id.).
Petitioner appealed her convictions and sentences on direct appeal. (Exhibits 3, 6, 8). On February 25, 2010, the Nevada Supreme Court entered an order affirming in part, reversing in part, and remanding petitioner's case to the state district court. (Exhibit 1). The Nevada Supreme Court reversed petitioner's conviction for attempted murder because the State presented no evidence that petitioner possessed the specific intent to kill. (Exhibit 1, at pp. 1-3). The Nevada Supreme Court affirmed all of petitioner's other convictions and remanded the case for entry of an amended judgment of conviction. (Exhibit 1, at p. 10). The state district court re-sentenced petitioner and filed an amended judgment of conviction on May 6, 2010, rescinding the sentence for attempted murder. (Exhibit 45).
On November 9, 2010, this Court received petitioner's pro se federal habeas corpus petition. (ECF No. 1-2). Although petitioner does not indicate the date on which she dispatched her federal petition, she signed the petition on November 4, 2010. (ECF No. 1-2, at p. 21). By order filed January 24, 2011, this Court granted petitioner's motion for counsel. (ECF No. 8). After the Federal Public Defender notified the Court of its inability to represent petitioner, the Court appointed attorney Beau Sterling to represent petitioner. (ECF No. 10). On July 11, 2011, counsel for petitioner filed a motion for a stay pending disposition of petitioner's state post-conviction habeas proceedings. (ECF No. 13). Respondents filed a response in which they indicated that they took no position regarding the motion. (ECF No. 15). By order filed December 7, 2011, the Court granted petitioner a stay for the purpose of concluding state court proceedings on the post-conviction habeas petition. (ECF No. 16).
On May 6, 2011, through appointed counsel, petitioner filed a post-conviction habeas petition in the state district court. (Exhibit 16). At a hearing on October 9, 2012, the state district court denied the post-conviction habeas petition. (Exhibit 38, Minutes of 10/9/2012). On November 1, 2011, the state district court entered findings of fact, conclusions of law, and order denying the habeas petition. (Exhibit 42). Petitioner did not appeal the state district court's order denying her habeas petition.
Petitioner, acting pro se, filed a motion to withdraw counsel in this Court on October 23, 2012. (ECF No. 18). This Court denied the motion without prejudice. (ECF No. 20). On May 31, 2013, petitioner filed a second pro se motion to withdraw counsel, asking that attorney Beau Sterling be taken off the case, and requesting substitute counsel. (ECF No. 27). On July 29, 2013, this Court granted petitioner's motion, relieving appointed counsel Beau Sterling, and appointing attorney Todd M. Leventhal as petitioner's new counsel. (ECF No. 29). On August 28, 2013, attorney Leventhal filed a status report on behalf of petitioner, seeking to reopen this action. (ECF No. 30). On November 15, 2013, this Court granted the request to reopen the case and set a deadline for the filing of an amended petition. (ECF No. 32). Petitioner filed an amended petition on January 15, 2014, along with exhibits. (ECF Nos. 34 & 35). The amended petition raises nine grounds for relief. (ECF No. 34). Respondents have filed the instant motion to partially dismiss the amended petition. (ECF No. 37). Through counsel, petitioner has filed an opposition to the motion to dismiss. (ECF No. 38). Respondents have filed a reply. (ECF No. 41)
Respondents argue that portions of the amended petition are unexhausted, that some claims are untimely, and some claims fail to state a claim for federal habeas corpus relief. (ECF No. 37).
A. Timeliness and Relation-Back
Respondents argue that parts of Grounds 1, 2, 3, and 7 of the amended petition are untimely because the claims do not relate back to petitioner's original federal petition pursuant to Mayle v. Felix, 545 U.S. 644, 657, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). The Antiterrorism and Effective Death Penalty Act (AEDPA) amended the statutes controlling federal habeas corpus practice to include a one-year statute of limitations on the filing of federal habeas corpus petitions. With respect to the statute of limitations, the habeas corpus statute provides:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitations under this subsection.
28 U.S.C. § 2244(d).
For purposes of the AEDPA limitations period, " a judgment becomes 'final' in one of two ways -- 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, again from the highest court from which such direct review could be sought." Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Once the judgment of conviction becomes final, the petitioner has 365 days to file a petition for relief under 28 U.S.C. § 2254, with tolling of the time for filing during the pendency of a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim . . . ." 28 U.S.C. § 2254(d).
In the instant case, the amended judgment of conviction was filed on May 6, 2010. (Exhibit 45). Petitioner had thirty days after May 6, 2010, within which to file a direct appeal. Nevada Rules of Appellate Procedure, Rule 4. Petitioner did not pursue a direct appeal from the amended judgment of conviction. Where a petitioner does not appeal from his judgment of conviction, the one-year AEDPA limitations period begins to run on the date on which the time to seek appeal expires. 28 U.S.C. § 2244(d)(1)(A); NRAP 4. Thus, petitioner's conviction became final on June 5, 2010, the deadline for filing a direct appeal. Pursuant to the AEDPA, petitioner then had one year within which to file the federal habeas petition, unless the time was otherwise tolled. The AEDPA statute of limitations expired on June 5, 2011. The original petition, filed November 4, 2010, was timely filed. See Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (pursuant to the " mailbox rule, " federal courts deem the filing date of a document as the date that it was given to prison officials for mailing). The amended petition, filed March 12, 2014, was filed well after the expiration of the AEDPA statute of limitations. Therefore, the Court must determine if the claims raised in the amended petition relate back to the original petition, pursuant to Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005).
Under Federal Rule of Civil Procedure 15, an amended pleading " relates back" to the original pleading only if the acts described in the amended pleading are set forth in the original pleading. Fed.R.Civ.P. 15(c)(2). An amended habeas petition only relates back if the amended claims are tied to the " same core of operative facts" as alleged in the original petition. Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). In Mayle, the petitioner originally raised only a Confrontation Clause claim in his habeas petition, based on the admission of video-taped prosecution witness testimony. 545 U.S. at 648-49. After the one-year AEDPA statute of limitations had passed, petitioner then sought to amend his habeas petition to allege a Fifth Amendment claim based on coercive police tactics used to obtain damaging statements from him. Id. The factual basis for each claim was distinct. Petitioner then argued that his amended claim related back to the date of his original habeas petition because the claim arose out of the same trial, conviction or sentence. Id. at 659-661. In rejecting petitioner's argument the Supreme Court held that if " claims asserted after the one-year period could be revived simply because they relate to the same trial, conviction, or sentence as a timely filed claim, AEDPA's limitation period would have slim significance." Id. at 662.
1. Ground 1
In Ground 1 of the of the amended petition, petitioner alleges that her rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated. Specifically, her right to effective assistance of counsel, right to confront witnesses, and due process rights were violated because the trial court allowed jurors to pose written questions to the witnesses without consultation with counsel and otherwise failed to comply with procedures for questions from jurors, as set forth in Flores v. State, 114 Nev. 910, 965 P.2d 901 (Nev. 1998). (ECF No. 34, at pp. 13-18). In her original petition, petitioner alleges her due process rights, and her rights under the Fifth, Sixth, and Fourteenth Amendments were violated because of the improper use of questions from jurors that failed to comply with Flores v. State, 114 Nev. 910, 965 P.2d 901 (Nev. 1998). (ECF No. 5, at p. 3). The factual predicate underlying the claims in the original petition and the amended petition is the same -- a challenge to the trial court having allowed jurors to pose written questions to the witnesses without consultation with counsel and without complying with procedures set forth in Flores v. State, 114 Nev. 910, 965 P.2d 901 (Nev. 1998). As such, Ground 1 of the amended petition relates back to the original petition, and is therefore deemed timely.
2. Ground 2
In Ground 2 of the amended petition, petitioner alleges that her rights to a fair trial and due process were violated due to the failure of the trial court to sever her capitally charged co-defendant who had additional charges not involving petitioner tried in the case. Petitioner alleges that this forced her to be tried by a jury that was qualified to render a death sentence. (ECF No. 34, at pp. 19-25). In the original petition, petitioner alleges that her rights to a fair trial and due process were violated based on the trial court's failure to sever the case from her co-defendant. (ECF No. 5, at p. 5). Respondents argue that the amended petition contains a new claim, that " the trial court also persuaded [petitioner's] counsel to relinquish the right to a limiting instruction relative to the theft of the purse from an occupied vehicle (larceny from a person) with which Ms. Archie was not charged." (ECF No. 34, at p. 20). Although this particular fact was ...