United States District Court, D. Nevada
GLORIA M. NAVARRO, Chief District Judge.
The United States Court of Appeals for the Ninth Circuit has remanded this case for the limited purpose of deciding two specific issues:
(1) Whether intervening law warrants reconsideration of Petitioner's appellate ineffective assistance of counsel (IAC) claims. See District Court's September 26, 2008 Order at 15 (dismissing appellate IAC claims as untimely); cf. Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013) (extending the procedural default exception of Martinez v. Ryan, 132 S.Ct. 1309 (2012), to appellate IAC claims defaulted by state post-conviction counsel).
(2) Whether intervening law warrants reconsideration of Claim 2(A) (IAC at sentencing). See District Court's March 15, 2010 Order at 9 (ruling that 28 U.S.C. § 2254(e)(2) precludes an evidentiary hearing on Claim 2(A)); see also District Court's September 1, 2010 Order at 24 (section 2254(e)(2) bars consideration of much of Petitioner's proffered evidence); cf. id. at 24-28 (however, even if the jury had heard the omitted evidence, there is no reasonable probability of a different sentence); cf. Woods v. Sinclair, 764 F.3d 1109, 1138 n.16 (9th Cir. 2014) (28 U.S.C. § 2254(e)(2) does not categorically bar an evidentiary hearing on procedurally defaulted IAC claims); see also Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc) (applying the Martinez procedural default exception to IAC claims raised ineffectively in state court and later expanded in federal court).
ECF No. 176.
In furtherance of that mandate, each party has submitted briefing on these issues. ECF Nos. 181 and 183. Upon due consideration, the court decides as follows.
(1) Whether intervening law warrants reconsideration of Petitioner's appellate IAC claims.
In the September 26, 2008, order cited in the limited remand order, this court determined that Petitioner's appellate IAC claims were untimely under 28 U.S.C. §2244(d) because they were filed beyond the one-year statutory filing period and did not relate back to Petitioner's timely-filed initial petition. ECF No. 36, p. 15-16. As noted in the remand order, the court of appeals has tasked this court with assessing whether that decision was correct in light of the subsequent decision in Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013). While the Ninth Circuit's explanatory parenthetical above refers to the case's extension of the holding in Martinez, Nguyen also involved an issue regarding whether the petitioner's appellate IAC claim related back to his timely-filed petition under Mayle v. Felix, 545 U.S. 644 (2005). Nguyen, 736 F.3d at 1297.
In Nguyen, the Ninth Circuit held that a claim alleging appellate counsel was ineffective for failing to raise a double jeopardy argument on direct appeal related back to the petitioner's claim that his rights were violated under the Double Jeopardy Clause, which in turn related back to the original petition and therefore was not barred by the one-year limitation period. 736 F.3d at 1296-97. The court noted that the "time and type" language in Felix "refers not to the claims, or grounds for relief, " but "to the facts that support those grounds." Id. at 1297. The court found that the original double jeopardy claim and the new claim alleging ineffective assistance of appellate counsel were "supported by a common core" of facts that were "simple, straightforward, and uncontroverted, " and "clearly alleged in the original pleading." Id.
Applying the relation-back standard espoused in Nguyen to this case,  this court finds that some, but not all, of Petitioner's ineffective assistance of appellate counsel claims arguably relate back to the timely-filed petition. With respect to those claims, the Nevada Supreme Court rejected them on the merits and relief must be denied under 28 U.S.C. § 2254(d).
Petitioner's ineffective assistance of appellate counsel claims are set forth under Claim Five in his petition. ECF No. 106, p. 153-56. In Claim Five(A), Petitioner claims that his counsel on direct appeal was subject to a conflict of interest that adversely affected her representation. Petitioner's initial petition contains no reference to this alleged conflict. ECF No. 5. Thus, even under Nguyen, the claim does not relate back.
In Claim Five(B), Petitioner claims that his counsel on direct appeal was ineffective for failing to challenge the trial court's decision to remove potential juror, Daniel Mahe,  for cause because he expressed reservations about the imposition of the death penalty. In his initial petition, Petitioner raised an ineffective assistance of trial counsel claim premised on counsel's failure to object to the juror's excusal. Id., p. 9-10. He also raised a substantive claim based on the trial court's alleged exclusion of "a number of prospective jurors... for cause" because they "did not express an intention to automatically vote for the death penalty on a murder conviction." Id., p. 49.
Assuming Claim Five(B) relates back to the initial petition under Nguyen, the claim is not procedurally defaulted. Petitioner raised the claim in his second state post-conviction proceeding. ECF No. 15, Ex. M, p. 62-63, 232; ECF No. 16, Ex. U, p. 30-31. In that proceeding, the Nevada Supreme Court determined that many of the petitioner's claims were procedurally barred, but held as follows:
One of Bejarano's claims during his second post-conviction proceeding was that his direct appeal counsel was ineffective. This court has considered this claim ...