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Duke v. Neven

United States District Court, D. Nevada

November 13, 2017

DAVID VAN DUKE, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         This is 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).[1]

         On June 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).

         On July 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).

         On 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).[2] The supplemental briefs (ECF Nos. 38 & 39) are now before the court.

         A 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 at 6);
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).

         However, 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.

         The 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.

         A 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.

         In 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).

         Where 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 ...


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