United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
action is a pro se petition for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada
state prisoner. Before the Court is respondents' motion
to dismiss Grounds 5(b) and 5(d) of the petition. (ECF No.
December 14, 2007, the State of Nevada filed an information
in the Eighth Judicial District Court for the State of the
Nevada charging petitioner with one count of attempted murder
with use of a deadly weapon, one count of battery with use of
a deadly weapon resulting in substantial bodily harm, and one
count of mayhem with use of a deadly weapon. (Exh.
After a jury trial, the jury returned a verdict finding
petitioner guilty of one count of attempted murder with use
of a deadly weapon and one count of mayhem with use of a
deadly weapon. (Exh. 6.)
state district court sentenced petitioner to 60 to 240 months
for the attempted murder charge, with an equal and
consecutive term for use of a deadly weapon, with the
sentence to run consecutive to criminal case C238876. (Exh.
8.) The state district court dismissed the mayhem charge as
redundant and issued its judgment of conviction on June 13,
2008. Petitioner appealed. (Exh. 9.) On May 13, 2009, the
Nevada Supreme Court affirmed petitioner's convictions.
3, 2010, petitioner filed a post-conviction petition in the
state district court. (Exh. 13.) The state district court
denied post-conviction relief on July 24, 2010. (Exh. 14.)
Petitioner appealed the denial to the Nevada Supreme Court.
(Exh. 15.) On January 13, 2011, the Nevada Supreme Court
affirmed the state district court's decision. (ECF No.
8-2 at 1-6.)
filed his federal petition for writ of habeas corpus in this
Court on March 26, 2011. (ECF No. 1.) On August 24, 2011,
respondents moved to dismiss several grounds of the petition.
(ECF No. 16.) On March 14, 2012, this Court issued an order
granting in part, and denying in part, respondents'
motion to dismiss. (ECF No. 28.) The Court ruled as follows:
Grounds 5(b) and 5(d) are unexhausted; Grounds 1(a), 1(b),
2(a), 3(d), 5(e) and 6(b)(1-5) are exhausted; Grounds 1(c)
and 5(a) are dismissed as procedurally defaulted; Grounds
1(a), 1(b), 2(a), 2(c), 4(c) and 5(e) are dismissed for
failure to state a claim; Grounds 2(b) and 2(d) state
cognizable claims for habeas relief. The Court gave
petitioner options for addressing his unexhausted claims.
Petitioner filed a motion for a stay and abeyance while he
exhausted Grounds 5(b) and 5(d) in state court. (ECF No. 39.)
On June 6, 2014, this Court granted petitioner's motion
for a stay and abeyance. (ECF No. 47.)
return to state court, petitioner presented Grounds 5(b) and
5(d) in his petition filed on August 1, 2014. (Exh. 16.) The
state district court denied the entire petition by order
filed December 15, 2014. (Exh. 17.) On April 15, 2015, the
Nevada Court of Appeals affirmed the state district
court's denial of the petition. (Exh. 18.)
his return from state court, petitioner filed a motion to
reopen this case on June 15, 2015. (ECF No. 48.) On March 9,
2016, the Court granted the motion to reopen this case and
directed respondents to answer the remaining grounds of the
petition. (ECF No. 50.) On July 7, 2016, respondents filed
the instant motion to dismiss Grounds 5(b) and 5(d) as
procedurally barred. (ECF No. 55.) Petitioner filed an
opposition. (ECF No. 66.) Respondents filed a reply brief.
(ECF No. 69.)
Procedural Default Principles
Coleman v. Thompson, 501 U.S. 722 (1991), the United
States Supreme Court held that a state prisoner's failure
to comply with the state's procedural requirements in
presenting his claims is barred from obtaining a writ of
habeas corpus in federal court by the adequate and
independent state ground doctrine. Coleman, 501 U.S.
at 731-32 (“Just as in those cases in which a state
prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State's procedural
requirements for presenting his federal claims has deprived
the state courts of an opportunity to address those claims in
the first instance.”). Where such a procedural default
constitutes an adequate and independent state ground for the
denial of habeas corpus relief, the default may be excused
only “if a constitutional violation has probably
resulted in the conviction of one who is actually innocent,
” or if the prisoner demonstrates cause for the default
and prejudice resulting from it. Murray v. Carrier,
477 U.S. 478, 496 (1986).
procedural bar is “adequate” if it is
“clear, consistently applied, and well-established at
the time of the petitioner's purported default.”
Calderon v. United States District Court (Bean), 96
F.3d 1126, 1129 (9th Cir. 1996) (quoting Wells
v. Maass, 28 F.3d 1005, 1010 (9th Cir.
1994)); see also King v. Lamarque, 464 F.3d 963,
966-67 (9th Cir. 2006). A state procedural bar is
“independent” if the state court
“explicitly invokes the procedural rule as a separate
basis for its decision.” Vang v. Nevada, 329
F.3d 1069, 1074 (9th Cir. 2003). A state
court's decision is not “independent” if the
application of the state's default rule depends on the
consideration of federal law. Park v. California,
202 F.3d 1146, 1152 (9th Cir. 2000); see also
Coleman, 501 U.S. at 735 (there is no independent state
ground for a state court's application of procedural bar
when the court's reasoning rests primarily on federal law
or is interwoven with federal law).
Analysis Regarding Independent and ...