Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nees v. Smith

United States District Court, D. Nevada

December 6, 2017

ERIC JOHN NEES, Petitioner,
v.
GREGORY SMITH, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This pro se habeas matter comes before the Court on the respondents' revised motion to dismiss petitioner's first amended petition. (ECF No. 67.) Petitioner has responded (ECF No. 69), and respondents have replied (ECF No. 70.)

         II. BACKGROUND

         In this action, petitioner challenges his conviction for aiding and abetting the commission of robbery with the use of a deadly weapon. (ECF No. 45 at 1). The amended petition, which is the operative petition in this case, was received and filed by the Court on July 25, 2011. (ECF No. 45.) Petitioner asserts three grounds for relief in his amended petition. In an answer filed on September 9, 2011, respondents argued that parts of all three grounds were unexhausted. (ECF No. 48.) Petitioner responded by abandoning the parts of Grounds 1 and 2 that were unexhausted and filing a motion to stay and abey to exhaust the unexhausted parts of Ground 3. (See ECF No. 49; ECF No. 50 at 2.) The Court granted the stay and administratively closed the case. (ECF No. 54.)

         Petitioner returned to state court and filed a second state habeas petition. The petition asserted that the deadly weapon enhancement violated his Fifth and Fourteenth Amendment rights and that counsel on direct appeal and post-conviction were ineffective for failing to raise the deadly weapon enhancement argument as a federal claim. (Exhibit 101.)[1] The Nevada Court of Appeals affirmed the denial of the petition on the grounds that it was untimely, successive, and an abuse of the writ. (Exhibit 116.) Following the Court of Appeals' decision, petitioner filed a motion to reopen this action, which the Court granted. (ECF Nos. 56, 62 & 65.) Respondents thereafter filed the instant revised motion to dismiss.

         III. DISCUSSION

         In their motion to dismiss, respondents contend that parts of Ground 3 remain unexhausted. Ground 3 comprises two claims: (1) Ground 3(a), which asserts that the evidence was insufficient to convict petitioner of aiding and abetting robbery; and (2) Ground 3(b), which asserts that application of the deadly weapon enhancement was improper. Both allege that petitioner's Fifth, Eighth, and Fourteenth Amendment rights were violated. (ECF No. 45 at 8-11.)

         Respondents argue that petitioner never presented Ground 3(a) or Ground 3(b) to the state courts in the context of either an Eighth Amendment violation or a violation of his right to be free of cruel and unusual punishment.[2] In his reply, petitioner concedes that Grounds 3(a) and 3(b) are unexhausted to the extent they allege an Eighth Amendment violation. Petitioner therefore abandons the Eighth Amendment claims asserted in Grounds 3(a) and 3(b). (ECF No. 69 at 2-3.) In light of petitioner's concession, the motion to dismiss Ground 3(a) and Ground 3(b) to the extent they assert violations of the Eighth Amendment will be granted.

         Respondents also move to dismiss the remainder of Ground 3(b) as procedurally defaulted because the petition in which petitioner exhausted that claim was denied on the basis of independent and adequate state procedural bars. Ground 3(b) was alleged as Ground 9 in petitioner's original petition. The Court previously held that Ground 9 was not exhausted because although petitioner challenged the enhancement in his direct appeal, he did not challenge it as a violation of federal law. (ECF No. 28 at 7.) In his return to state court with his second habeas petition, petitioner asserted that the enhancement violated his Fifth and Fourteenth Amendment rights. (Exhibit 101).

         The Court cannot review a 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). 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. 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).

         The Nevada Court of Appeals affirmed the trial court's denial of the second habeas petition on the grounds that it was procedurally barred as untimely, successive, and an abuse of the writ. (Exhibit 116; NRS §§ 34.726 & 34.810(1)(b)(2) & (2).) The Ninth Circuit has held that application of the timeliness rule in NRS § 34.726(1) is an independent and adequate state law ground for procedural default. Moran v. McDaniel, 80 F.3d 1261, 1268-70 (9th Cir. 1996); see also Valerio v. Crawford, 306 F.3d 742, 778 (9th Cir. 2002). The Ninth Circuit also has held that, at least in non-capital cases, application of the successive petition rule of NRS § 34.810(2) is an independent and adequate state ground for procedural default. Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003); Bargas v. Burns, 179 F.3d 1207, 1210-12 (9th Cir. 1999). The Nevada court's decision in this case did not depend on the application of federal law in deciding that the claim was procedurally defaulted. Accordingly, the state court relied on independent and adequate state law grounds in dismissing petitioner's second state habeas petition as untimely, successive, and an abuse of the writ.

         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 the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986). 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. Murray, 477 U.S. at 488. For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 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.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)).

         Petitioner argues that ineffective assistance of counsel on direct appeal and in his post-conviction proceedings provides ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.