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Adkisson v. Neven

United States District Court, D. Nevada

February 13, 2017

MICHAEL DEAN ADKISSON, Petitioner,
v.
D.W. NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         This counseled habeas matter under 28 U.S.C. § 2254 is before the court on respondents' motion to dismiss petitioner Michael Dean Adkisson's second-amended petition (ECF No. 36). Adkisson opposed (ECF No. 45), and respondents replied (ECF No. 46).

         I. Procedural History and Background

         The State of Nevada charged Adkisson with murder with use of a deadly weapon in connection with an incident between he and an acquaintance, Steven Borgens, in which Borgens ended up dead of a gunshot wound (exhibit 7).[1] On September 14, 2004, a jury found Adkisson guilty of second-degree murder with use of a deadly weapon (exhibit 30). The state district court sentenced him to life with the possibility of parole after ten years, with an equal and consecutive term for the deadly weapon enhancement. Exh. 33. Judgment of conviction was entered on December 27, 2004. Exh. 36.

         The Nevada Supreme Court affirmed Adkisson's convictions on May 17, 2006, and denied his motion for rehearing on July 12, 2006. Exhs. 46, 48. Remittitur issued on August 8, 2006. Exh. 136.

         On April 15, 2015, the Nevada Supreme Court affirmed the denial of Adkisson's counseled, state postconviction petition. Exh. 117. That court denied a motion for rehearing on May 29, 2015, and remittitur issued on June 25, 2015. Exhs. 118, 137.

         While Adkisson's state postconviction was pending, he dispatched his federal habeas petition for filing on November 17, 2014 (ECF No. 8). This court appointed the Federal Public Defender as counsel for Adkisson. Respondents now argue that claims in the second-amended petition do not relate back to any timely-filed earlier petition, some grounds fail to state claims for which habeas relief may be granted, and some claims are unexhausted (ECF No. 36).

         II. Legal Standards & Analysis

         a. Relation Back

         Respondents argue that grounds 1(A), 1(B), and 1(F) of the second-amended petition do not relate back to a timely-filed petition and should thus be dismissed as untimely (ECF No. 36, pp. 6-9). A new claim in an amended petition that is filed after the expiration of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation period will be timely only if the new claim relates back to a claim in a timely-filed pleading under Rule 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises out of “the same conduct, transaction or occurrence” as a claim in the timely pleading. Mayle v. Felix, 545 U.S. 644 (2005). In Mayle, the United States Supreme Court held that habeas claims in an amended petition do not arise out of “the same conduct, transaction or occurrence” as claims in the original petition merely because the claims all challenge the same trial, conviction or sentence. 545 U.S. at 655-64. Rather, under the construction of the rule approved in Mayle, Rule 15(c) permits relation back of habeas claims asserted in an amended petition “only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in ‘both time and type' from the originally raised episodes.” 545 U.S. at 657. In this regard, the reviewing court looks to “the existence of a common ‘core of operative facts' uniting the original and newly asserted claims.” A claim that merely adds “a new legal theory tied to the same operative facts as those initially alleged” will relate back and be timely. 545 U.S. at 659 and n.5; Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013).

         Here, Adkisson mailed his federal habeas petition on November 17, 2014, and he filed his counseled, first-amended petition on August 25, 2015 (ECF Nos. 8, 16). The parties do not dispute that the AEDPA one-year statute of limitations expired on August 27, 2015. Accordingly, the claims in the second-amended petition must relate back to Adkisson's original pro se petition or the first-amended petition in order to be deemed timely.

         Ground 1(A)

         Ground 1 alleges several instances of ineffective assistance of counsel (ECF No. 28, pp. 16-30). Adkisson argues in ground 1(A) of the second-amended petition that his Sixth Amendment right to effective assistance of trial counsel was violated because counsel failed to present a crime scene expert (ECF No. 28, pp. 16-21). Adkisson alleges several mistakes or omissions by law enforcement in gathering evidence and argues that a crime scene expert who later reviewed law enforcements' investigation of the crime opined that the investigation was inadequate and violated department procedures. Id. Adkisson points out that he raised this claim as ground 1(A)(3)(a) of his first-amended petition (ECF No. 16, pp. 41-42). While the second-amended petition adds the opinion of the crime scene expert, he bases his views on the same alleged mistakes and omissions by law enforcement. Ground 1(A) relies on the same common core of operative facts as the claim he previously raised in a timely petition.

         Ground ...


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