United States District Court, D. Nevada
C. JONES United States District Judge.
the court are the second amended petition for writ of habeas
corpus (ECF No. 72), respondents' motion to dismiss (ECF
No. 75), petitioner's opposition (ECF No. 79), and
respondents' reply (ECF No. 80). The court already has
ruled upon the merits of two grounds in the second amended
petition. The remaining ground is procedurally defaulted, and
petitioner has not demonstrated cause to excuse the default.
The court grants the motion to dismiss.
remand from the court of appeals, petitioner, with the
assistance of counsel, filed the second amended petition (ECF
No. 72). The second amended petition contains three grounds.
In ground 1, petitioner claims that the removal of a juror
who had introduced extrinsic evidence during deliberations
created prejudicial constitutional error. In ground 2,
petitioner claims that he received ineffective assistance of
appellate counsel because appellate counsel did not challenge
under the Confrontation Clause of the Sixth Amendment the
admission of the minor victim A.J.'s statements to a
police officer. In ground 3, petitioner claims that he
received ineffective assistance of trial counsel because
trial counsel did not hire an expert on grand mal seizures to
support petitioner's defense that the injuries of adult
victim Elysia Jones were caused by a grand mal seizure.
and petitioner agree that the court already has decided
against petitioner on the merits of what were grounds 3 and
15(I)(B) of the first amended petition (ECF No. 46), and what
are now grounds 1 and 3 of the second amended petition. ECF
No. 57, at 3-4, 7-8. The court also did not issue a
certificate of appealability for those grounds. On appeal,
petitioner did not seek a certificate of appealability for
those grounds, and the court of appeals did not address the
court's determinations on those grounds. The court's
determinations on what are now grounds 1 and 3 of the second
amended petition are final. Reasonable jurists would not
disagree with this new determination, and the court will not
issue a certificate of appealability for these grounds.
argue that ground 2 of the second amended petition is
untimely, procedurally defaulted, and meritless on its face.
For the reasons stated below, the court agrees with the last
after the events at issue in this case, Reno Police Officer
Rebecca Clark spoke with the minor victim, A.J., who was five
years old at the time. A.J. told Officer Clark about her
injuries, what petitioner did, and what petitioner said. A.J.
testified at trial, when she was six, and she was
cross-examined, but she did not remember some things.
See Ex. 26, at 85-101 (ECF No. 22-13, at 17-33). The
prosecutor then called Officer Clark as a witness. The
defense counsel objected to Officer Clark's testimony
based upon the Confrontation Clause and Crawford v.
Washington, 541 U.S. 36, 59 (2004). In a hearing outside
the presence of the jury, the prosecutor stated that he
intended to ask Clark about A.J.'s statements. Ex. 26, at
105-07 (ECF No. 22-13, at 37-39). The prosecutor noted that
although Crawford mentions hearsay exceptions, it is
a ruling on the Confrontation Clause. The prosecutor argued
that there is no confrontation clause issue with regard to
A.J.'s statements to Officer Clark because A.J. had
testified and was cross-examined. The prosecutor also argued
that Clark's testimony was allowable as a
past-recollection-recorded exception to the hearsay rule. The
defense attorney stood on Crawford. He said,
“And I know what-the District Attorney's argument
is about. [A.J.] is available, but she is in essence
unavailable because she doesn't remember anything really
substantive.” Ex. 26, at 110 (ECF No. 22-13, at 42).
The trial court allowed the testimony. On direct appeal,
appellate counsel did not make any argument about Officer
filed a post-conviction habeas corpus petition in state
district court. The state district court appointed counsel.
Counsel filed a supplemental petition. In argument II of the
supplemental petition, petitioner argued that appellate
counsel provided ineffective assistance because appellate
counsel did not raise the issue of Officer Clark's
testimony on direct appeal. Ex. 72, at 6-7 (ECF No. 25-17, at
7-8). Petitioner mentioned the Confrontation Clause and
Crawford, but only in the context of the
prosecutor's argument at the hearing that they were not
applicable to Officer Clark's offered testimony.
Otherwise, petitioner argued that appellate counsel failed to
appeal Officer Clark's hearsay testimony. The state
district court ruled against petitioner, analyzing the claim
solely as a claim that appellate counsel failed to raise the
issue of hearsay. Ex. 74, at 9-10 (ECF No. 25-19, at 10-11).
On appeal, petitioner's relevant argument started,
“This Defense Counsel also failed to Appeal the Hearsay
testimony of Officer Clark as to what was stated by the six
year old victim.” Ex. 92, at 7 (ECF No. 26-19, at 8).
The paragraph of this argument contained no mention of the
Confrontation Clause. The appellate response by the
respondents argued that appellate counsel was not ineffective
because an argument based upon either the hearsay rule or the
Confrontation Clause would not have succeeded, because A.J.
appeared and testified. Ex. 93, at 9-10 (ECF No. 26-20, at
10-11). The Nevada Supreme Court summarily affirmed the state
district court's ruling on this issue. Ex. 96, at 1-2
(ECF No. 26-23, at 2-3).
court does not agree with respondents that the court ruled on
the merits of ground 2 of the second amended petition when it
ruled on the merits of ground 15(II) of the first amended
petition. Ground 15(II) of the first amended petition was a
copy of argument II of the supplemental state post-conviction
habeas corpus petition. Petitioner presented argument II, and
thus ground 15(II), as a claim that appellate counsel failed
to argue that Officer Clark's testimony was inadmissible
hearsay. The state district court decided argument II solely
on the issue of hearsay. The Nevada Supreme Court affirmed
the state district court. Although the respondents in the
state habeas corpus proceedings argued that no violation of
the Confrontation Clause had occurred, petitioner, not the
respondents, decided what legal theories to use.
issue then becomes whether ground 2 of the second amended
petition is timely under 28 U.S.C. § 2244(d)(1). Ground
2 is not timely by itself because the one-year period had
expired before petitioner raised the ground in any court.
Petitioner argues that ground 2 relates back to ground 15(II)
of the first amended petition. Relation back, pursuant to
Rule 15(c) of the Federal Rules of Civil Procedure, is
allowed “[s]o long as the original and amended
petitions state claims that are tied to a common core of
operative facts . . . .” Mayle v. Felix, 545
U.S. 644, 664 (2005). Ground 2 of the second amended petition
and ground 15(II) of the first amended petition share many of
the same facts. Those facts are: (1) Officer Clark asked A.J.
what happened, and A.J. gave a statement to Officer Clark,
(2) A.J. testified at trial and was cross-examined, without
much recollection on her part, and (3) Officer Clark
testified about what A.J. told her. The difference between
ground 15(II) of the first amended petition and ground 2 of
the second amended petition is the legal theory that
petitioner argues that appellate counsel should have raised
on direct appeal. In the first amended petition, petitioner
argues that appellate counsel should have raised an issue
that Officer Clark's testimony violated the state hearsay
rule. In the second amended petition, petitioner argues that
appellate counsel should have raised an issue that Officer
Clark's testimony violated the Confrontation Clause.
court of appeals has addressed similar issues in two cases.
In Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir.
2013), Nguyen was convicted of two felonies and one
misdemeanor. The state trial court imposed a
“three-strikes” sentence of 25 years to life for
the second felony, a three-year concurrent sentence for the
first felony, and a misdemeanor sentence that is irrelevant.
The state court of appeal determined that the evidence was
insufficient to support the conviction of the second felony
and that Nguyen should have been convicted of a
lesser-included misdemeanor for that count. On re-sentencing,
the trial court then changed the first felony's
three-year concurrent sentence into a
“three-strikes” sentence of 25 years to life.
Nguyen had spent more than 3 years in prison by that time. On
further appeal, he argued unsuccessfully that the sentence
was grossly disproportionate under the Eighth Amendment.
Nguyen then turned to federal court. He raised the Eighth
Amendment claim and a claim that the re-sentencing violated
the Double Jeopardy Clause. The federal court stayed the
habeas corpus proceedings to allow Nguyen to exhaust that
double jeopardy claim and a new claim, not raised in the
initial federal petition, that appellate counsel provided
ineffective assistance by not raising the double jeopardy
claim on direct appeal. The California Supreme Court found
that the subsequent state petition was untimely. Back in
federal court, the double jeopardy claim and the
ineffective-assistance claim were procedurally defaulted. The
ineffective-assistance claim also was untimely unless it
could relate back. Id. at 1290-91. The court of
appeals emphasized that the rule of Mayle v. Felix
requires a new claim to share a common core of operative
facts, not legal theories. All three claims
shared the same operative facts: Nguyen had fully served the
three-year sentence originally imposed when the trial court
re-sentenced him to 25 years to life. Consequently, the
ineffective-assistance claim related back to the other claims
even though it had a different theory and even though it
occurred not at sentencing, but later when appellate counsel
did not raise the issue. Id. at 1296-97.
Schneider v. McDaniel, 674 F.3d 1144 (9th Cir.
2012), which started in this court, Schneider raised in a
timely proper-person federal habeas corpus petition that
appellate counsel provided ineffective assistance because
appellate counsel did not raise on direct appeal: (a)
challenges to the sufficiency of the evidence; (b) a
challenge to the trial court's alleged violation of the
petitioner's right to a jury determination; (c) lack of
subject matter jurisdiction; and (d) additional grounds that
appointed counsel could discover later. This court appointed
counsel, who filed an amended petition after expiration of
the one-year period. Schneider's amended petition alleged
that appellate counsel provided ineffective assistance
because appellate counsel failed to argue on direct appeal
that Schneider's convictions on two counts were either
mutually exclusive or redundant. The court of appeals held
that the claim in the amended petition did not relate back
because it shared no operative facts with the timely claims
of ineffective assistance of appellate counsel in the
original petition. Id. at 1151-52
two cases show that the operative facts, not the legal
theories, determine whether a new claim relates back to a
timely claim in an earlier petition. In petitioner's
case, relation back is appropriate. Both ground 2 of the
second amended petition and ground 15(II) of the first
amended petition rely upon the same operative facts: (1)
Officer Clark asked A.J. what happened, and A.J. gave a
statement to Officer Clark, (2) A.J. testified at trial and
was cross-examined, without much recollection on her part,
and (3) Officer Clark testified about what A.J. told her. The
only difference is the legal theory that petitioner argues
appellate counsel should have raised on direct appeal.
Ha Van Nguyen holds that such a difference
is immaterial to the question of relation back. Consequently,
ground 2 of the second amended petition relates back to the
timely ground 15(II) of the first amended petition.
2 of the second amended petition is not exhausted, because
petitioner never has presented to the state courts the claim
that appellate counsel was ineffective for not raising a
confrontation clause challenge to Officer Clark's
testimony. The court of appeals, based upon the statements of
both parties, has ruled that the ground should be considered
procedurally defaulted because the state courts would apply
state-law procedural bars to not consider the ground.
Petitioner argues that he can show cause and prejudice to
excuse the procedural default because post-conviction counsel
in the state court provided ineffective assistance by not
raising the claim in ...