United States District Court, D. Nevada
M. NAVARRO, UNITED STATES DISTRICT JUDGE.
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 comes before the Court on the
respondents' motion to dismiss (ECF No. 10). Petitioner
has opposed (ECF No. 19), and respondents have replied (ECF
in this action challenges his conviction pursuant to a guilty
plea of one count of second-degree kidnapping and one count
of child abuse and neglect with substantial bodily harm. (ECF
No. 8; Ex. 42). Shortly after pleading guilty, petitioner
moved to withdraw his plea. (Ex. 44). The trial court denied
the motion after conducting a hearing. (Ex. 56). On August
29, 2013, petitioner was sentenced to a term of six to
fifteen years on the kidnapping count and a concurrent term
of eight to twenty years on the child abuse count. (Ex. 57).
Judgment of conviction was entered on September 6, 2013 (Ex.
58), and petitioner appealed (Ex. 59). While his direct
appeal was pending, petitioner filed a state petition for
writ of habeas corpus. (Ex. 70).
Nevada Supreme Court affirmed petitioner's conviction on
October 15, 2014, and remittitur issued on November 20, 2014.
(Exs. 68 & 69).
December 8, 2014, petitioner filed a second state habeas
petition. (Ex. 77). On December 19, 2014, the district court
ordered respondents to respond to the second petition. (Ex.
79). Respondents filed responses to both the first and second
petitions on March 16, 2015. (Ex. 82).
April 27, 2015, the district court entered an order denying
petitioner's second petition on the grounds that it was
successive and therefore barred by Nevada Revised Statutes
§ 34.810(2). (Ex. 88). On April 30, 2015, the district
court entered an order denying petitioner's first state
petition as procedurally barred pursuant to §
34.810(1)(a). (Ex. 87). The district court further found that
petitioner's claims should have been raised on direct
appeal, if at all. (Id.)
September 16, 2015, the Nevada Court of Appeals affirmed the
denial of both petitions. (Ex. 90). As to the first petition,
the Court of Appeals held that the ineffective assistance of
counsel claims therein lacked merit and that the remaining
claims could have been, but were not, raised on direct appeal
and therefore were barred pursuant to Nevada Revised Statutes
§ 34.810(1)(b). (Id.) As to the second
petition, the Court of Appeals held that it was barred under
Nevada Revised Statutes § 34.810(1)(b)(2) because the
claims could have been raised in his prior habeas petition
but were not. (Id.)
February 8, 2016, petitioner mailed the instant federal
habeas petition for filing with this Court. The petition
asserts thirteen grounds for relief. Respondents move to
dismiss the petition in part on the grounds that some of the
claims are procedurally defaulted and others are not
cognizable on federal habeas review.
assert that Grounds 1 and 5 and Grounds 2, 3, 4, 7, 8, 10, 11
and 12 are procedurally defaulted.
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.
Coleman v. Thompson, 501 U.S. 722, 731-32 (1991).
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 ...