United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE.
counseled habeas matter under 28 U.S.C. § 2254 is before
the court on respondents' motion to dismiss in part
petitioner Willie Ray Lewis' counseled fourth-amended
petition (ECF No. 86). Lewis opposed (ECF No. 89), and
respondents replied (ECF No. 92).
Procedural History and Background
April 7, 2006, a jury convicted Lewis of count 1 and 2:
lewdness with a minor under the age of fourteen; counts 3-23,
26-45: sexual assault with a minor under sixteen years of
age; count 24: attempted sexual assault with a minor under
sixteen years of age; and count 25: lewdness with a minor
under the age of fourteen (exhibit 14). The state
district court sentenced Lewis as follows: counts 1 and 2, 48
to 120 months concurrent; count 3, life with parole after 60
months, consecutive to count 2; counts 4 through 23, life
with possibility of parole after 240 months concurrent with
each other; counts 26 through 45, a sentence of life with
possibility of parole after 240 months concurrent with each
other; count 24, to a term of a minimum of 96 months and a
maximum term of 240 months concurrent to count 23; count 25,
life with a minimum term of 120 months to run consecutive to
count 24. Exh. 16. The judgment of conviction was filed on
June 16, 2006. Exh. 17. On August 7, 2007, the Nevada Supreme
Court affirmed Lewis' convictions in part and reversed in
part. Exh. 24. Wright filed a notice of appeal. Exh. 45. The
state supreme court concluded that as to victim S.L., while
sufficient evidence was presented to support five sexual
assault convictions, insufficient evidence was presented as
to 34 other counts. Id. at 3-4. Remittitur issued on
September 4, 2007. Exh. 26. An amended judgment of conviction
was filed on October 24, 2007, stating “it is ordered
that counts 5-23 and counts 29-45 are dismissed.” Exh.
29. Lewis did not appeal the amended judgment of conviction.
October 16, 2007, Lewis filed a proper person state
postconviction habeas corpus petition. Exh. 28. The state
district court denied the petition on January 22, 2008. Exh.
33. On June 18, 2009, the Nevada Supreme Court affirmed the
denial of the petition in part and reversed and remanded in
part. Exh. 35. The state supreme court ordered the district
court to consider whether appointment of counsel was
appropriate and directed the district court to conduct an
evidentiary hearing with respect to whether defense counsel
should have interviewed certain witnesses. Id.
filed two motions for appointment of counsel, which the state
district court denied. Exhs. 37, 39, 40, 42. The Nevada
Supreme Court dismissed Lewis' appeal of the denial of
the motions for counsel for a jurisdiction defect on the
basis that no statute or court rule provides for an appeal of
an order denying a motion for appointment of counsel. Exh.
43. The state district court conducted an evidentiary hearing
on the state petition, and the court denied the petition on
December 14, 2009. Exhs. 45, 47. The Nevada Supreme Court
affirmed the denial of the petition on June 9, 2010, and
remittitur issued on July 8, 2010. Exhs. 55, 57.
filed a second proper person state postconviction habeas
petition on July 7, 2010, and a supplement to the petition on
July 30, 2010. Exhs. 56, 59. On August 2, 2010, the state
district court dismissed the petition as successive and
untimely. Exh. 60. The Nevada Supreme Court affirmed the
district court on March 17, 2011, and remittitur issued on
April 12, 2011. Exhs. 63, 64.
20, 2010, Lewis dispatched his federal habeas petition for
filing (ECF No. 7). This court appointed counsel, and
petitioner filed a counseled third-amended petition on
November 4, 2011 (ECF No. 29). Petitioner filed a counseled
fourth-amended petition on February 16, 2012 (ECF No. 43).
February 4, 2013, the court granted respondents' first
motion to dismiss in part and denied it in part (ECF No. 53).
This court concluded that portions of grounds 2, 3, and 4
were unexhausted and ultimately dismissed the unexhausted
portions of grounds 2 and 3 without prejudice (Id.;
ECF No. 76). The court granted Lewis' motion for stay and
abeyance pending his exhaustion of ground 4(b) (ECF No. 76).
filed a third state habeas petition on July 17, 2014. Exhs.
78, 79. The state district court denied the petition on
November 20, 2014, the Nevada Supreme Court affirmed the
denial on February 10, 2016, and remittitur issued on March
18, 2016. Exhs. 84, 91, 92.
April 27, 2016, this court granted Lewis' motion to
reopen his federal habeas proceedings (ECF No. 82).
Respondents moved to dismiss several grounds as unexhausted
and/or procedurally barred (ECF No. 86). Lewis opposed (ECF
No. 89). In their reply, respondents argued that ground 4(b)
is procedurally defaulted and withdrew all other arguments
(ECF No. 92).
“a state prisoner's failure to comply with the
state's procedural requirements in presenting his claims
bar him or her from obtaining a writ of habeas corpus in
federal court under the adequate and independent state ground
doctrine.” Schneider v. McDaniel, 674 F.3d
1144, 1152 (9th Cir.2012) (citing Coleman v.
Thompson, 501 U.S. 722, 731-32 (1991)). 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, 730-31 (1991). The
Coleman Court stated the effect of a procedural
default as follows:
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 ...