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Smith v. LeGrand

United States District Court, D. Nevada

August 7, 2017

KEITH G. SMITH, Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Before the Court is the amended petition for writ of habeas corpus. (ECF No. 15.) Respondents move to dismiss (“Motion”). (ECF No. 29.) The Court has reviewed petitioner's opposition (ECF No. 44) and respondents' reply (ECF No. 49). The Court grants the Motion in part because some grounds are not timely and some grounds are not exhausted.

         II. DISCUSSION

         A. Timeliness

         Respondents argue that parts of Ground 6 of the amended petition are untimely. Petitioner filed his initial, proper-person petition on time. He filed his counseled amended petition after expiration of the one-year period of limitation of 28 U.S.C. § 2244(d). The grounds of the amended petition are timely if they relate back to the initial petition. Under Rule 15(c), a claim in an amended petition relates back to a claim in a timely-filed petition if the claim in the amended petition “arose out of the conduct, transaction, or occurrence set out” in the previous petition. Fed.R.Civ.P. 15(c)(1)(B). As the Supreme Court explained in Mayle v. Felix, 545 U.S. 644 (2005), Rule 15(c) permits relation back only when new claims “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.” Mayle, 545 U.S. at 657 (internal quotation marks omitted). The question, then, is whether Ground 6 of Irive's amended petition shares “a common core of operative facts” with a timely-filed claim in his original petition.

         1. Ground 6(a)

         Ground 6(a) is a claim that trial counsel provided ineffective assistance because trial counsel failed to make the recordings of petitioner's statements to police, and the transcripts of those recordings, part of the record on appeal. Petitioner argues that ground 6(a) relates back to grounds 2 and 6 of the original petition. The Court disagrees. Ground 2 of the original petition is a claim that appellate counsel failed to make the recordings and the transcripts part of the record. (ECF No. 1-1 at 35-37.)[1] This ground differs with Ground 6(a) in the key operative fact of which counsel failed to act. Ground 6 of the original petition is a claim that the trial court erred in refusing to play the recordings for the jury. This ground differs with Ground 6(a) in the key operative facts of what the error was, who committed the error, and when the error occurred. Ground 6(a) does not relate back to the initial petition. See Schneider v. McDaniel, 674 F.3d 1144, 1150-1152 (9th Cir. 2012).

         2. Ground 6(b)

         Ground 6(b) is a claim that trial counsel [1] failed to have petitioner testify in his own defense, [2] failed to consult with petitioner regarding his right to testify, and [3] failed to secure a waiver of that right. Petitioner did not break Ground 6(b) into three separate parts. Respondents have done that, with the numbers that the Court has placed in brackets, and petitioner has objected to respondents re-writing his petition. Respondents then argue that the claim that trial counsel failed to consult with petitioner about his right to testify does not relate back to any claim in the initial petition. The Court disagrees. Ground 15 of the initial petition is a claim that trial counsel failed to have petitioner testify. (ECF No. 1-2 at 33-37.) It is true that petitioner does not allege in that ground that counsel failed to consult with petitioner about his right to testify, but the Court does not see that as an operative fact. Consultation, or the lack of consultation, is inherent in any ineffective-assistance claim regarding a person's right to testify. Ground 6(b) relates back to the initial petition.

         3. Ground 6(d)

         Ground 6(c) is a claim that trial counsel failed to seek testing of a blood sample of the victim. Respondents argue that although petitioner did raise in the initial petition a claim that trial counsel failed to seek testing of the blood sample, the reasons why petitioner suffered prejudice have changed. In ground 18 of the initial petition, petitioner argues, “If the alleged victim was more than double the legal limit to drive a car based upon her blood alcohol content combined with her abuse of methamphetamine, the jury would have recognized her impaired perceptions.” (ECF No. 1-3 at 11.) In Ground 6(c) of the amended petition, petitioner argues, “Methamphetamine is a stimulant, and would have counteracted the effects of alcohol.” (ECF No. 15 at 30.) The operative facts in both grounds are the same-counsel failed to seek testing of the blood sample of the victim. Relation back is proper even if the consequences argued from those facts are different. See Felix, 545 U.S. at 664 n.7. Ground 6(c) relates back to the initial petition.

         4. Ground 6(d)

         Ground 6(d) is a claim that counsel failed to obtain the victim's criminal record. In ground 1 of the initial petition, petitioner alleged:

It was also determined, and never investigated, that the victim had a criminal history for drug convictions, and more importantly perjury. These facts were never investigated by Mr. Avants [trial counsel].

(ECF No. 1-1 at 34.) Ground 6(d) might be more specific than what petitioner alleged in the initial petition, but it still shares the common operative fact that trial counsel did not investigate the victim's criminal ...


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