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Dominguez v. Williams

United States District Court, D. Nevada

December 4, 2017

Demain Dominguez, Petitioner
v.
Brian E. Williams, et al., Defendants

          ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS [ECF NO. 63]

          Jennifer A. Dorsey U.S. District Judge

         Counseled petitioner Demain[1] Dominguez is serving multiple, consecutive 20-years-to-life sentences at the Southern Desert Correctional Center after a jury found him guilty of: (1) robbery, (2) burglary, (3) conspiracy to commit robbery, (4) first-degree murder, (5) conspiracy to commit murder, and (6) two use-of-deadly-weapon enhancements.[2] In his third-amended petition for a writ of habeus corpus under 28 U.S.C. § 2254, Dominguez argues that his Fifth and Fourteenth Amendment due-process rights were violated because the evidence was insufficient to support his murder, robbery, and conspiracy to commit robbery convictions.[3] He also argues that his Sixth and Fourteenth Amendment rights were violated because his defense attorney at trial provided him with ineffective assistance.[4] The Government moves to dismiss grounds 3 and 6 of the third-amended petition as untimely and procedurally barred.[5] I grant the motion in part, dismissing ground 6.

         Background

         In the early morning hours of January 30, 2007, Mark Friedman was attacked, stabbed, and robbed in his home.[6] After police officers and paramedics responded to the scene, Friedman was taken to the hospital.[7] Friedman suffered three stab wounds to the torso, among other injuries, but he did not appear to suffer direct internal injury.[8] Medical personnel performed an exploratory laparotomy to inspect Friedman's abdominal organs for injury.[9] Following surgery, Friedman began vomiting and aspirated some of the vomit into his lungs.[10] He died ten days later.[11]

         At trial, medical examiner Dr. Gary Telgenhoff testified that Friedman's death was a result of complications from the stab wounds.[12] While Dr. Telgenhoff's testimony suggested that Friedman may have died directly from pneumonia that he contracted after aspirating his vomit-which was itself a result of the surgery-Telgenhoff believed that Friedman's death was caused by the stab wounds because, but for the wounds, Friedman would not have needed medical treatment.[13] But Dr. Telgenhoff was not present during the autopsy.[14]

         On July 13, 2009, the jury found Dominguez guilty on all counts.[15] Dominguez appealed, and the Nevada Supreme Court affirmed on December 20, 2010.[16] Eight months later, Dominguez filed a post-conviction petition for a writ of habeas corpus in state court.[17] The trial court denied the petition, and Dominguez appealed.[18] While his appeal was pending, Dominguez filed a second state habeas petition, and the trial court denied that, too, as untimely, successive, and an abuse of the writ.[19]

         On July 25, 2012, the Nevada Supreme Court affirmed the denial of Dominguez's first state habeas petition, and remittitur issued on August 20, 2012.[20] Six months later, the Nevada Supreme Court affirmed the denial of the second state habeas petition as procedurally barred.[21]

         Dominguez, initially pro se, filed this federal habeas petition on September 12, 2012.[22]The original petition asserted ten grounds for relief and included allegations that the exploratory surgery performed on Friedman was a superseding cause of Friedman's death and that Dominguez's trial counsel was ineffective for failing to investigate the State's witnesses.[23]

         After counsel was appointed to represent Dominguez, first- and second-amended petitions were filed, and the court granted discovery.[24] During discovery, Dominguez obtained Friedman's medical records from University Medical Center and, by court-authorized subpoena, Paramedics/AMR records from the Clark County District Attorney's Office.[25] Dominguez then filed a third state habeas petition, which was denied as untimely, successive, and procedurally barred.[26] The Nevada Supreme Court affirmed the denial as procedurally barred and barred by the law-of-the-case doctrine.[27] Dominguez then moved to file a third-amended federal habeas petition-the motion was granted.[28] The Government now moves to dismiss grounds 3 and 6 of the third-amended petition as untimely and procedurally defaulted.[29]

         Discussion

         A. Standards

         1. Timeliness

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute of limitations on the filing of federal habeas corpus petitions. The statute imposing a period of limitations provides:

(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) 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; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitations under this subsection.

28 U.S.C. § 2244(d) (2012).

         A claim in an amended petition that is filed after the expiration of the one-year limitation period will be timely only if the claim relates back to a timely-filed claim on the basis that the claim arises out of “the same conduct, transaction or occurrence” as the timely claim.[30] In Mayle v. Felix, the Supreme Court held that habeas claims in an amended petition do not arise out of “the same conduct, transaction or occurrence” as prior timely claims merely because the claims all challenge the same trial, conviction, or sentence.[31] Rather, FRCP 15(c) permits relation back of habeas claims asserted in an amended petition “only when the claims added by amendment 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.”[32] The reviewing court looks to “the existence of a common ‘core of operative facts' uniting the original and newly asserted claims.”[33] A claim that merely adds “a new legal theory tied to the same operative facts as those initially alleged” will relate back and be timely.[34]

         2. Procedural Default

         A federal court cannot review a claim that was denied by the state court on “independent and adequate state procedural grounds.”[35] 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.[36] A state procedural bar is “adequate” if it is “clear, consistently applied, and well-established at the time of the petitioner's purported default.”[37] A state procedural bar is “independent” if the state court “explicitly invokes the procedural rule as a separate basis for its decision.”[38] A state court's decision is not “independent” if the application of the state's default rule depends on the consideration of federal law.[39]

         When a procedural default constitutes an adequate and independent state ground for the 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 the default and prejudice resulting from it.[40] To demonstrate cause for a procedural default, the petitioner must “show that some objective factor external to the defense impeded” his efforts to comply with the state procedural rule.[41] For cause to exist, the external impediment must have prevented the petitioner from raising the claim.[42] With respect to the prejudice prong, the petitioner bears “the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.”[43]

         B. Analysis

         1. Timeliness

         Dominguez concedes that grounds 3 and 6 of his third-amended petition are timely only if they relate back to his original, timely filed petition.[44]

         a. Ground 3

         Ground 3 of the third-amended petition asserts that Dominguez's trial counsel was ineffective for failing to investigate the State's medical witnesses.[45] Dominguez alleges:

An investigation into these witnesses would have established that the stabbing did not cause the death. There was an intervening cause for Friedman's death, namely the unnecessary surgery. Such an investigation would have included, at the very least, obtaining the medical records and ...

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