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Rogers v. Filson

United States District Court, D. Nevada

March 1, 2017

MARK ROGERS, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

         Introduction and Background

         In this capital habeas corpus action, this court ruled on respondents' motion to dismiss on March 24, 2008, granting it in part and denying it in part. See Order entered March 24, 2008 (ECF No. 108). The court dismissed Grounds 1, 2, 4, 8, 12, 14, 15, 16, 17, 18, 22, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37 of Mark Rogers' second amended petition for writ of habeas corpus (ECF No. 77). The court found Rogers' Ground 7 to be unexhausted, and Rogers abandoned that claim on April 24, 2008 (ECF No. 109).

         After respondents answered, and the parties briefed Rogers' remaining claims, the court ruled on the merits of those claims on July 8, 2011, granting Rogers' petition in part and denying it in part. See Order entered July 8, 2011 (ECF No. 145). The court denied Rogers relief with respect to Grounds 3, 5, 6, 9, 10, 11, 13, 19, 24, and 38 of his second amended petition. The court granted Rogers relief with respect to Grounds 20, 21, and 23, concerning Rogers' death sentence. Accordingly, the court ordered that Rogers be granted a new penalty-phase trial, or that his death sentence be vacated and a non-capital sentence imposed upon him.

         Respondents appealed and Rogers cross-appealed (ECF Nos. 147, 149). The Ninth Circuit Court of Appeals ruled on July 16, 2015. See Opinion of Court of Appeals (ECF No. 162). The court of appeals affirmed the grant of habeas corpus relief regarding Rogers's death sentence. However, the appellate court remanded the case to this court for further consideration of certain of Rogers' claims regarding the guilt phase of his trial, in light of potentially relevant cases decided while the case was on appeal. See Opinion of the Court of Appeals (ECF No. 162), pp. 17-19. Regarding the remanded claims, the court of appeals stated:

Turning to Rogers's many uncertified guilt-phase claims, we expand Rogers's COA, vacate the district court's denials of relief and remand for further proceedings, because the district court did not have the benefit of many potentially relevant cases decided while Rogers's appeal was pending. See Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014) (holding that we may issue a COA if jurists of reason could debate the correctness of district court's procedural ruling or whether petitioner has been denied a constitutional right). [Footnote: Our grant of partial habeas corpus relief moots Rogers's numerous penalty-phase claims, which we do not address.] It is appropriate that the district court address the significance, if any, of those new precedents in the first instance.
The district court held that several of Rogers's claims were procedurally barred, and dismissed them. After that order, the Supreme Court decided Martinez v. Ryan, [566 U.S. 1], 132 S.Ct. 1309 (2012), and we have applied Martinez in several cases, including Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013), Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc), and Pizzuto v. Ramirez, 783 F.3d 1171, 1176-78 (9th Cir. 2015). We expand the COA as to Claims 12, 14, 15, 16, 17, 18, 26, and 28, vacate the district court's dismissal of these claims, and remand them for consideration of Martinez and our decisions interpreting it. On remand, the district court should consider whether these claims are claims of ineffective assistance of trial or direct appeal counsel cognizable under Martinez, and whether Rogers can show cause and prejudice to excuse his procedural default. [Footnote: Rogers also challenges the sufficiency of the state procedural default rule applied in his case. We decline at this time to address that sufficiency issue. Rogers may raise this challenge again in a later appeal, if not rendered moot by proceedings on remand.]
The district court also denied several claims on the merits, refusing under Cullen v. Pinholster, 131 S.Ct. 1388 (2011), to consider new evidence Rogers presented in support of his federal habeas petition. We expand the COA as to Claims 5, 9, and 10, vacate the district court's denial of these claims, and remand for the district court to consider our subsequent decision in Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc), as well as the decisions in Martinez, Ha Van Nguyen, Detrich, and Pizzuto.
Finally, the district court determined that several of Rogers's claims were barred by AEDPA's one-year statute of limitations, 28 U.S.C. § 2244(d)(1), and that Rogers was not entitled to equitable tolling on those claims. While Rogers's case was pending on appeal, we decided Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2014). We expand the COA as to Rogers's Claims 1, 2, and 8, vacate the district court's dismissal of those claims, and remand to the district court to consider whether, in light of Sossa, Rogers is entitled to equitable tolling on those claims. If the district court concludes that equitable tolling is appropriate, it should consider in the first instance whether Rogers can show good cause for a stay and abeyance procedure under Rhines v. Weber, 544 U.S. 269 (2005). See Blake v. Baker, 745 F.3d 977, 984 (9th Cir.), cert. denied, 135 S.Ct. 128 (2014) (holding that a petitioner who showed ineffective assistance of counsel in initial post-conviction review proceedings had shown “good cause” for a stay and abeyance).

Id. at 17-19.

         This court then ordered the parties to file briefs stating their positions with respect to the issues to be resolved on remand (ECF No. 167). Rogers filed his opening brief (ECF No. 174), along with a motion for an evidentiary hearing (ECF No. 175), on April 25, 2016. Respondents filed their responsive brief (ECF No. 189) and an opposition to the motion for an evidentiary hearing (ECF No. 190) on September 12, 2016. Rogers filed a reply brief (ECF No. 198) and a reply in support of his motion for evidentiary hearing (ECF No. 199) on January 18, 2017.

         In this order, the court determines that the dismissal of Grounds 1, 2, and 8, as barred by the statute of limitations, is unaffected by the court of appeals' subsequent decision in Sossa; those claims are again dismissed. The court determines that an answer is warranted with respect to Grounds 12, 14, 15, 16, 17, 18, 26, and 28, and perhaps a supplemental answer with respect to Grounds 5, 9, and 10. The court finds that the motion for evidentiary hearing is premature, and that motion will be denied, without prejudice. The court will set a schedule set for respondents' answer and Rogers' reply, and for Rogers to file a new motion for evidentiary hearing.

         Grounds 1, 2, and 8

         Rogers' Grounds 1, 2, and 8 were dismissed, as barred by the statute of limitations, in the order entered by this court on March 24, 2008 (ECF No. 108). The following is from that order:

For convictions that became final prior to the enactment of the AEDPA, a petitioner had until April 24, 1997, to file a federal habeas corpus petition. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001). That is the case here. Petitioner's conviction became final on May 19, 1986, when the United States Supreme Court denied petitioner's petition for a writ of certiorari, with respect to the ruling of the Nevada Supreme Court affirming his conviction and sentence. See Rogers v. Nevada, 476 U.S. 1130 (1986). Therefore, without the benefit of any tolling, the limitations period applicable to petitioner's federal habeas corpus action would have expired on April 24, 1997. See Patterson, 251 F.3d at 1245-46.
The AEDPA limitations period, however, is tolled while a “properly filed application” for post conviction or other collateral relief is pending before a state court. 28 U.S.C. § 2244(d)(2). A “properly filed application” is one in which the “delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Dictado v. Ducharme, 244 F.3d 724, 726-27 (9th Cir. 2001), quoting Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 364 (2000). In Pace v. DeGuglielmo, 544 U.S. 408, 414 (2005), the Supreme Court held that a state postconviction petition rejected by the state court as untimely is not “properly filed” within the meaning of § 2244(d)(2), and, therefore, does not qualify for statutory tolling under that statute.
Petitioner filed a state-court post-conviction habeas corpus petition - initiating his third state habeas action - on March 24, 1997, one month before the limitations period for his federal petition was to expire. See Second Amended Petition, p. 10, ¶29; Petitioner's Exhibit 562. That state habeas petition was dismissed by the state district court on May 1, 2000. See Second Amended Petition, p. 21, ¶30. The Nevada Supreme Court affirmed on May 13, 2002. See Second Amended Petition, p. 22, ¶32; see also Petitioner' Exhibit 564.
In its decision affirming the dismissal of petitioner's third state habeas action, the Nevada Supreme Court ruled unequivocally that the petition had been untimely filed. See Petitioner's Exhibit 564, pp. 3-5. Under Pace, therefore, petitioner's third state habeas petition did not toll the limitations period under 28 U.S.C. § 2244(d)(2). See Pace, 544 U.S. at 414.
The AEDPA limitations period is also subject to equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner bears the burden of showing that equitable tolling is appropriate. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). The petitioner must establish: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418. The resolution of the equitable tolling issue is “highly fact-dependent.” Espinoza-Matthews, 432 F.3d at 1026; Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc, per curiam).
Here, the Court finds that petitioner has met his burden, and that equitable tolling is warranted - but only with respect to certain of petitioner's claims.
In petitioner's second federal habeas action, on January 29, 1997, the Court entered an order addressing the issue whether petitioner's claims were exhausted in state court. Rogers v. Angelone, 3:93-cv-0785-ECR, docket #76. In that order, the Court found several of petitioner's claims to be unexhausted. Id. at 10. Consequently, the Court required petitioner to make the following election:
either (1) voluntarily dismiss his habeas petition in order pursue state remedies with respect to the unexhausted claims, or (2) abandon the unexhausted claims and proceed with only the exhausted claims. Id. The Court stated in the order:
We recommend option (1) above whereby Petitioner voluntarily dismisses the petition now before this Court. Petitioner may then proceed through the Nevada state court system in order to exhaust the currently unexhausted claims. Upon properly exhausting these claims, Petitioner may seek federal habeas review of all possible grounds for relief. The advantage of this course of action is that it enables Petitioner to argue all the claims for relief in a single federal proceeding. Furthermore, a voluntary dismissal of the instant petition would not prejudice in any way Petitioner's ability to seek federal habeas corpus relief through a subsequent petition. However, Petitioner must understand that, pursuant to recently enacted federal legislation, there is a one year deadline between the time the conviction became final and the time the federal habeas corpus petition must be filed (excluding the time during which a state post-conviction petition is ...

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