United States District Court, D. Nevada
P. GORDON, UNITED STATES DISTRICT JUDGE
a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, by a Nevada state
prisoner. The petition asserts three grounds for relief
related to petitioner's state court convictions for (1)
failure to stop on signal of a police officer, (2)
trafficking in a controlled substance, and (3) transport of a
controlled substance. (ECF No. 1 at 2).
30, 2014, the court entered an order granting the
respondents' motion to dismiss. (ECF No. 25). The court
dismissed Ground One of the petition as conclusory and found
several allegations in Grounds Two and Three to be
unexhausted. The court also denied petitioner leave to amend
to include several additional claims, in part because
petitioner failed to comply with Local Rule 15-1(a) by
including a complete amended petition and in part because the
claims were unexhausted. The court advised petitioner that it
could not proceed on his mixed petition and outlined his
options, which included filing a motion to stay and abey.
(See ECF No. 25).
16, 2014, petitioner filed a motion to stay and abey. (ECF
No. 26). Three months later, petitioner filed a motion to
“unstay, ” asserting that he had filed a second
state habeas petition and that the Nevada Supreme Court had
ruled on it. (ECF No. 28).
April 27, 2015, the court entered an order finding that
petitioner satisfied the requirements for a stay but
deferring entry of the stay pending supplemental briefing.
(ECF No. 33). The court directed the parties to address
whether the claims it previously found unexhausted were
procedurally defaulted in light of the Nevada Supreme
Court's decision, which affirmed the denial of the second
state habeas petition as untimely, successive, and an abuse
of the writ. (See Ex. 117). The supplemental briefs (ECF
Nos. 38 & 39) are now before the court.
review of the record indicates that most of the claims raised
by petitioner in his second state habeas petition are not
part of the petition in this case. Petitioner's second
state habeas petition asserted three grounds for relief:
1. Ground One: Ineffective assistance of counsel and due
process because collateral post-conviction counsel failed to
raise or argue a “mere presence” defense (Ex. 100
2. Ground Two: Ineffective assistance of counsel because
trial counsel failed to investigate and failed to raise a
“mere presence” defense, (id. at 7); and
3. Ground Three: Ineffective assistance of counsel because
trial counsel failed to object to inconsistent testimony and
failed to request an inconsistent testimony instruction,
(id. at 8).
none of these claims is part of the operative petition in
this case. In its order of June 30, 2014, the court denied
petitioner leave to amend his petition to include claims
based on ineffective assistance of post-conviction counsel,
trial counsel's failure to raise or argue a “mere
presence” defense, and trial counsel's failure to
object to inconsistent testimony or request an inconsistent
testimony instruction. (See ECF No. 25 at 4-5). The
court also dismissed as conclusory Ground One of the
petition, which asserted that counsel was ineffective for
failing to conduct an adequate investigation or provide a
meaningful defense. (ECF No. 25 at 6-7). Thus,
petitioner's second state habeas petition served to
exhaust only claims that are not part of this petition and --
with one possible exception -- none of the claims the court
previously found unexhausted.
second state habeas petition may have exhausted one claim of
the operative petition. In its order of June 30, 2014, the
court noted that the petition could be read to assert a
substantive sufficiency of the evidence claim challenging
petitioner's transportation conviction. (See ECF
No. 25 at 10; ECF No. 6 at 10). A liberal construction of the
second state habeas petition reveals a possible substantive
sufficiency of the evidence on the transportation conviction.
(Ex. 103 (Supp. to Petition at 6)). Given petitioner's
latest assertion that his “only lawful sentence is
transporting, ” (see ECF No. 19 at 2; see
also ECF No. 39 at 6), it is not even clear that this is
one of petitioner's claims. However, to the extent it is,
it is procedurally barred.
federal court cannot review even an exhausted claim “if
the Nevada Supreme Court denied relief on the basis of
‘independent and adequate state procedural
grounds.'” Koerner v. Grigas, 328 F.3d
1039, 1046 (9th Cir. 2003). The Nevada Supreme Court
dismissed petitioner's second habeas petition as untimely
and successive and therefore procedurally barred.
Coleman v. Thompson, the Supreme Court held that a
state prisoner who fails 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 v. Thompson, 501 U.S. 722, 731-32 (1991). A
state 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). A state procedural bar is
“independent” if the state court
“explicitly invokes the procedural rule as a separate
basis for its decision.” Yang 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).
such a procedural default constitutes an adequate and
independent state ground for denial of habeas corpus, 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 ...