United States District Court, D. Nevada
RODNEY L. EMIL, Petitioner,
TIMOTHY FILSON, et al., Respondents.
March 7, 2017, petitioner filed his fourth amended petition
in this capital habeas case. ECF No. 244. On June 14, 2017,
petitioner filed a motion asking this court to stay
proceedings and hold them in abeyance until he exhausts state
court remedies with respect to one of the claims in that
petition - i.e. a claim based on Hurst v. Florida,
136 S.Ct. 616 (2016). ECF No. 247. Petitioner has also filed
a motion asking this court to reconsider its previous order
(ECF No. 246) denying his motion to supplement his third
amended petition with his Hurst claim. ECF No. 249.
For the reasons that follow, the motions are denied.
his motion to stay, Emil asks the court to stay further
proceedings in this case until he completes state court
litigation of his Hurst claim. Emil represents to
this court that the state district court has denied relief
with respect to the claim, but that his appeal to the Nevada
Supreme Court remains pending.
Rhines v. Weber, 544 U.S. 269 (2005), the stay and
abeyance procedure was condoned by the Court as a means by
which a habeas petitioner with a mixed petition subject to
dismissal under Rose v. Lundy, 455 U.S. 509 (1982),
could fully exhaust his petition without the risk of running
afoul of the 1-year statutory time limit for filing federal
petitions. Rhines, 544 U.S. at 276. The Court in
Rhines cautioned, however, that stay and abeyance,
if too frequently used, would undermine AEDPA's goals of
prompt resolution of claims and deference to state court
rulings. Id. Thus, the Court held that, in order to
obtain "stay and abeyance, " a petitioner must
show: 1) good cause for the failure to exhaust claims in
state court; 2) that unexhausted claims are potentially
meritorious; and 3) the absence of abusive tactics or
intentional delay. Id.; Jackson v. Roe, 425
F.3d 654, 662 (9th Cir. 2005).
Hurst, the Court held that Florida's capital
sentencing scheme violated the Sixth Amendment right to a
jury trial because, under the scheme, the jury rendered an
advisory verdict but the judge ultimately found the facts
necessary to impose a sentence of death. 136 S.Ct. at 624. In
reaching that holding, the Court relied upon Ring v.
Arizona, 536 U.S. 584 (2002), which held that any fact
necessary for the imposition of the death penalty must be
found by a jury, not a judge. 536 U.S. at 589. Ring
and Hurst are both based on Apprendi v. New
Jersey, 530 U.S. 466 (200), which held that any fact
that "expose[s] the defendant to a greater punishment
than that authorized by the jury's guilty verdict"
is an "element" that must be submitted to a jury.
530 U.S. at 494.
a jury imposed the death penalty in Emil's case, he
claims that his death sentence is nonetheless
unconstitutional under Hurst because the jury was
not instructed that it must find beyond a reasonable doubt
that there are no mitigating circumstances sufficient to
outweigh the aggravating circumstances. Emil reasons that,
under Hurst, the weighing of aggravating and
mitigating factors is an "element" that must be
submitted to the jury and, as such, it necessarily follows
that the reasonable doubt standard imposed by the Fifth
Amendment applies to the weighing process.
claim extends the holding in Hurst well beyond its
cognizable bounds. Hurst does not hold, as
petitioner claims, that the weighing aggravating and
mitigating circumstances is an "element" that must
be submitted to the jury. The Court in Hurst
concluded that Florida's capital sentencing scheme was
unconstitutional because it "required the judge alone to
find the existence of an aggravating circumstance."
Hurst, 136 S.Ct. at 624. The import of
Hurst is its holding that the jury's advisory
role under Florida law fell short of complying with the Sixth
Amendment requirement of Apprendi and
Ring. It did not break new ground with respect
to what determinations qualify as an "element" that
must be submitted to a jury.
Ninth Circuit has yet to conclusively resolve the issue in a
reported decision, but has noted that it is “highly
skeptical” of the argument that “Nevada's
scheme is unconstitutional because it does not require the
‘weighing determination' to be made beyond a
reasonable doubt.” Ybarra v. Filson, 869 F.3d
1016, 1030 (9th Cir. 2017). In this court's
view, the determination that there are no mitigating
circumstances sufficient to outweigh the aggravating
circumstances is a matter of subjective judgment, not a
“fact” amenable to proof beyond a reasonable
doubt. More fundamentally, Emil's claim that he was
entitled to a "beyond a reasonable doubt" jury
instruction with respect to the weighing determination lacks
the support of any controlling case law classifying that
determination as an “element” that must be
determined by a jury.
even if Hurst creates a new rule supporting
Emil's claim, Ybarra held that any such new rule
would not apply retroactively to cases on collateral review,
such as this one. The court in Ybarra
“assum[ed] for the sake of argument” that
Hurst “creates a new rule, ”
“establishes that the ‘weighing
determination' is an element, ” and “renders
the Nevada sentencing scheme unconstitutional, ” but
determined that, “even after making these generous
assumptions, ” the petitioner could not obtain relief
under Hurst because the it does not apply
retroactively. Id. at 1031-33.
on the foregoing, this court concludes that Emil's claim
based on Hurst has no potential for success on its
merits, so a stay of this action to allow for state-court
exhaustion of the claim is unwarranted. Emil's motion for
stay and abeyance shall be denied.
January 11, 2017, Emil filed a motion to supplement his third
amended petition, asking leave to add his Hurst
claim to that pleading. ECF Nos. 242/243. This court denied
the motion as moot because, at the time the court ruled on
it, Emil had already filed his fourth amended petition
including the Hurst claim. ECF No. 246. In seeking
reconsideration of that decision, Emil states that he is
concerned that the claim may be ruled untimely because this
fourth amended petition was filed more than a year after the
issuance of the Supreme Court's decision in
discussed above, Emil's Hurst claim fails on the
merits. Even if that were not the case, the timeliness of the
claim under Emil's scenario would depend upon 28 U.S.C.
§ 2244(d)(1)(C), which provides that the 1-year period
of limitation begins “the date on which the
constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review.” Construing this language, the
Supreme Court has held that the statute starts running on the
date the Court recognizes the right, not on the date the
Court makes it retroactively applicable. Dodd v. United
States, 545 U.S. 353, 358 (2005). However, a
petitioner “may take advantage of the date in the first
clause . . . only if the conditions in the second clause are
met.” Id. at 359.
a claim based on Hurst is timely under 28 U.S.C.
§ 2244(d)(1)(C) only if the following requirements are
met: (1) the claim is filed no later than January 12, 2017;
(2) the Supreme Court has recognized Hurst as a new
rule no later than January 12, 2017; and (3) the Supreme
Court has declared Hurst retroactive no later than
January 12, 2017. See Id. at 359 (holding that
applicant “will be time barred except in the rare case
in which this Court announces a new rule of constitutional
law and makes it retroactive within one year”). No
decision issued by the Supreme Court satisfies either of the
latter two ...