United States District Court, D. Nevada
ORDER DIRECTING SUPPLEMENTAL BRIEFING
Jennifer A. Dorsey United States District Judge
November 21, 2016, I found that one of Mayo's claims is
unexhausted, so I granted in part respondents' dismissal
motion and gave Mayo until January 22, 2017, to notify the
court how he wishes to proceed with this action. Mayo timely
filed a motion requesting a stay and abeyance while he
returns to state court to exhaust supplemental ground one.
ground one is a claim for ineffective assistance of counsel
based on Mayo's counsel's failure to properly advise
him about the plea agreement, which lead Mayo to enter a plea
he would not otherwise have entered. Mayo's motion raises
issues that have not been addressed by the parties'
briefing: is supplemental ground one procedurally barred in
state court? If so, should supplemental ground one be treated
as procedurally defaulted and thus technically exhausted in
this case? Resolution of these issues may impact whether a
stay is warranted in this case.
supplemental ground one is procedurally barred in state
court, Mayo may be able to overcome procedural default in
this action if he can show good cause to excuse the default
under Martinez v. Ryan, 566 U.S. 1 (2012). Because
resolution of that question would likely involve
consideration of the ground's merits, it may best be
addressed in conjunction with the merits of all of Mayo's
claims after the petition has been fully briefed.
unexhausted claim will be procedurally defaulted, if state
procedural rules would now bar the petitioner from bringing
the claim in state court.” The Supreme Court explained
the effect of a procedural default in Coleman v.
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
demonstrate cause for a procedural default, the petitioner
must be able to “show that some objective factor
external to the defense impeded” his efforts to comply
with the state procedural rule.
Coleman, the Supreme Court held that ineffective
assistance of counsel in state post-conviction proceedings
does not establish cause for the procedural default of a
claim. The High Court established a narrow
exception to that rule in Martinez:
Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
contrast to federal law, under Nevada law, the absence of
counsel in state post-conviction proceedings generally does
not provide cause to overcome a procedural bar in state
states that he was without counsel in his state habeas
proceedings, and he cites Martinez to argue that
there was cause for his failure to earlier exhaust
supplemental ground one in state court. And it appears that
he could make the same argument as a basis for cause to
overcome the procedural default of that claim in federal
court. Therefore, before I address Mayo's motion for
stay, I direct the parties to set forth their positions on
whether supplemental ground one is procedurally barred in
IT IS HEREBY ORDERED that respondents must file a supplement
to their opposition to petitioner's motion for stay
addressing the question of the possible anticipatory default
of supplemental ground one by May 18, 2017.
Mayo will then have 30 days to file a reply. The parties are
cautioned that I am unlikely to extend this briefing schedule
absent a showing of extraordinary circumstances.