United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
counseled 28 U.S.C. § 2254 habeas matter is before the
court on the parties' supplemental briefing regarding
ground 1 (ECF Nos. 42, 44). On September 13, 2016, the court
granted respondents' motion to dismiss in part (ECF No.
40). The court deferred a ruling as to whether ground 1
should be dismissed in order to allow the parties to file the
supplemental briefing. As discussed below, ground 1 is
dismissed as procedurally barred.
court set forth the procedural history and background of this
habeas matter in its September 13, 2016 order on the motion
to dismiss (ECF No. 40). Respondents argue that ground 1
should be dismissed because it is procedurally defaulted (ECF
No. 44, see also ECF Nos. 26, 34). “Procedural
default” refers to the situation where a petitioner in
fact presented a claim to the state courts but the state
courts disposed of the claim on procedural grounds, instead
of on the merits. A federal court will not review a claim for
habeas corpus relief if the decision of the state court
regarding that claim rested on a state law ground that is
independent of the federal question and adequate to support
the judgment. Coleman v. Thompson, 501 U.S. 722,
Coleman Court explained the effect of a procedural
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.
Coleman, 501 U.S. at 750; see also Murray v.
Carrier, 477 U.S. 478, 485 (1986). The procedural
default doctrine ensures that the state's interest in
correcting its own mistakes is respected in all federal
habeas cases. See Koerner v. Grigas, 328 F.3d 1039,
1046 (9th Cir. 2003).
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. Murray, 477 U.S. at
488 (emphasis added). For cause to exist, the external
impediment must have prevented the petitioner from raising
the claim. See McCleskey v. Zant, 499 U.S. 467, 497
(1991). If he can establish cause, a petitioner must then
show “prejudice, ” i.e. that there was
actual prejudice amounting to a substantial disadvantage, and
which resulted in a trial infected with constitutional error.
White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989).
addition, the Supreme Court has held that, in collateral
proceedings that provide the first occasion to raise a claim
of ineffective assistance of trial counsel, ineffective
assistance of postconviction counsel in that proceeding may
establish cause for a prisoner's procedural default of
such a claim. Martinez v. Ryan, 566 U.S. 1, 9
(2012). The Court stressed that its holding was a
“narrow exception” to the rule in
Coleman that “an attorney's ignorance or
inadvertence in a postconviction proceeding does not qualify
as cause to excuse a procedural default.” Id.
Nguyen v. Curry, 736 F.3d 1287, 1295 (9th Cir.
2013), the Ninth Circuit expanded Martinez to allow
ineffective assistance of postconviction counsel to be used
as a means to excuse the default of claims of ineffective
assistance of appellate counsel.
contends that his convictions for both attempted robbery with
the use of a deadly weapon and battery with the use of the
same deadly weapon violate the Fifth Amendment's double
jeopardy clause (ECF No. 19, pp. 20-22). Winn presented this
claim to the Nevada Supreme Court on appeal from the denial
of his state postconviction petition. Exh. 74, p. 22; exh.
89, p. 8.
Nevada law, the state district court shall dismiss any
postconviction claim that could have been raised in a direct
appeal or a prior postconviction petition. NRS 34.810(1)(b).
Petitioner bears the burden of proving good cause for his
failure to present the claim and of proving actual prejudice.
Id. The Nevada Supreme Court explicitly relied on
this procedural bar when it declined to review the claim that
corresponds to federal ground 1. Exh. 89, p. 8. The Ninth
Circuit Court of Appeals has held that, at least in
non-capital cases, application of the procedural bar at issue
in this case - NRS 34.810 - is an independent and adequate
state ground. Vang v. Nevada, 329 F.3d 1069, 1073-75
(9th Cir. 2003); see also Bargas v. Burns, 179 F.3d
1207, 1210-12 (9th Cir. 1999).
this court previously concluded that the Nevada Supreme
Court's determination that federal ground 1 was
procedurally barred under NRS 34.810(1)(b) was an independent
and adequate ground for the court's affirmance of the
dismissal of that claim in the state petition (ECF No. 40,
argues, however, that the state procedural default should not
bar his federal claim because he can show cause and prejudice
to overcome the default (ECF No. 42). In his supplemental
briefing, Winn contends that his case in similar to
Nguyen, because Winn's appellate counsel failed
to raise the issue that his convictions and sentences for
attempted robbery with use of a deadly weapon and battery
with use of the same deadly weapon violated the double
jeopardy clause of the Fifth Amendment. Id. at 7.
Winn's position is unavailing. Federal ground 1 is a
substantive claim that his convictions and sentences violated
double jeopardy. However, the Nguyen court held that
Martinez- which held that ineffective assistance of
postconviction counsel may constitute cause for failure to
raise a claim of ineffective assistance of trial
counsel-extended to postconviction counsel's failure to
raise a claim of ineffective assistance of appellate counsel.