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Henderson v. Baker

United States District Court, D. Nevada

March 6, 2017

JOSEPH HENDERSON, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          ROBERT C. JONES UNITED STATES DISTRICT JUDGE.

         This counseled habeas matter under 28 U.S.C. § 2254 is before the court on respondents' motion to dismiss petitioner Joseph Henderson's first-amended petition (ECF No. 23). Henderson opposed (ECF No. 34), and respondents replied (ECF No. 36).

         I. Procedural History and Background

         On June 27, 2008, a jury found Henderson guilty of count 1: conspiracy to commit burglary; count 2: burglary while in possession of a firearm; count 3: conspiracy to commit first-degree kidnapping; counts 4 and 5: first-degree kidnapping with use of a deadly weapon; count 6: conspiracy to commit sexual assault; counts 7, 8 and 9: sexual assault with use of a deadly weapon; count 10: conspiracy to commit robbery; counts 11 and 12: robbery with use of a deadly weapon; count 13: open or gross lewdness; and count 14: battery with use of a deadly weapon resulting in substantial bodily harm (exhibit 42).[1] The state district court sentenced him as follows: count 1 - 12 months in the county jail; count 2 - 62 to 156 months in prison, to run concurrently with count 1; count 3 - 24 to 60 months, consecutive; counts 4 and 5: two terms of 60 months to life, each with a consecutive, identical term for the deadly weapon enhancement, consecutive; count 6 - 24 to 60 months, consecutive; counts 7, 8 and 9 - three terms of 120 months to life, each with a consecutive term of 120 months to life for the deadly weapon enhancement; count 7 to run concurrently with all other counts, counts 8 and 9 to run consecutively; count 10 - 24 to 60 months, consecutive; counts 11 and 12 - two terms of 72 to 180 months, each with a consecutive term of 72 months to 180 for the deadly weapon enhancement, count 11 to run concurrently with the other counts, count 12 to run consecutively; count 13 - 12 months in the county jail, to run concurrently with the other counts; and count 14 - 62 to 156 months. Exh. 45. The aggregate sentence amounted to a life term with a minimum parole eligibility of about 116 years, with almost 3 and one-half years' credit for time served. Id. Judgment of conviction was filed September 24, 2008. Exh. 46.

         The Nevada Supreme Court affirmed Henderson's convictions on February 3, 2010, and remittitur issued on March 2, 2010. Exhs. 61, 62.

         On September 18, 2014, the Nevada Supreme Court affirmed the denial of Henderson's state postconviction petition, and remittitur issued on October 20, 2014. Exhs. 103, 104.

         On November 28, 2014, Henderson dispatched his federal habeas petition for filing (ECF No. 7). This court appointed the Federal Public Defender as counsel for Henderson. Respondents now argue that ground 3 of the first-amended petition does not relate back to any timely-filed earlier petition and that grounds 1 and 2 are unexhausted (ECF No. 23).

         II. Legal Standards & Analysis

         a. Relation Back

         Respondents argue that ground 3 of the first-amended petition does not relate back to a timely-filed petition and should thus be dismissed as untimely (ECF No. 23, pp. 6- 7). 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, the parties do not dispute that Henderson filed his first-amended federal habeas petition about 18 months after the AEDPA statute of limitations expired and that his claims in the first-amended petition must relate back to his original pro se federal petition in order to be timely (ECF Nos. 23, 34).

         Ground 3

         In the first-amended petition, Henderson claims that his Sixth and Fourteenth Amendment rights to effective assistance of trial counsel were violated when his trial counsel failed to preserve the record by allowing the trial court to conduct unrecorded bench conferences (ECF No. 18, pp. 28-29). Henderson acknowledges that he did not raise this claim in his original federal petition (see ECF No. 7), but he argues that the factual background is the same as other claims timely raised: “ground 3 sets forth a claim that, by necessity, permeated the entire trial record. Every instance of alleged trial error, and Henderson alleges many, is impacted by the trial court's incomplete record” (ECF No. 34, p. 7).

         This court disagrees that the core of operative facts can be fairly characterized as essentially the entire trial court record. As the Court held in Mayle, 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. 545 U.S. at 655-64. The underlying factual background of the ineffective assistance of counsel claims in the original petition differs from the claim in first-amended ground 3 that counsel was ineffective for failing to ensure ...


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