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Emanuel v. Neven

United States District Court, D. Nevada

December 27, 2017

TROY RAY EMANUEL, JR., Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

          ORDER

          Gloria M. Navarro States District Judge

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss (ECF No. 7), in connection with an amended petition (ECF No. 18) filed by petitioner substantially thereafter without obtaining leave to amend, and on sua sponte reconsideration of the prior denials of petitioner's motions for appointment of counsel (ECF Nos. 2 and 14). In the motion to dismiss, respondents contend that Grounds 1 and 2 of the original petition are unexhausted and that Grounds 2 and 3 are not cognizable. The improperly-filed amended petition potentially would reassert only original Grounds 2 and 3.

         Background

         Petitioner Troy Emanuel challenges his November 1, 2013, Nevada state conviction: (a) pursuant to a guilty plea, of one count of conspiracy to commit murder, four counts of battery with the use of a deadly weapon resulting in substantial bodily harm, and one count of robbery with the use of a deadly weapon; and (b) pursuant to an Alford plea, of five counts of attempted murder with the use of a deadly weapon. He is sentenced in the aggregate to approximately 14 to 35 years, with sentences on multiple counts running concurrently.

         Petitioner originally was represented in the state criminal proceedings by the public defender. The public defender withdrew due to a conflict, however; and Richard Tannery was appointed as trial counsel. (See ECF Nos. 9-3 & 9-7; Exhibits 3 & 7.)

         Emanuel entered the guilty and Alford pleas on the Monday morning scheduled for the trial, May 20, 2013. Tannery was representing Emanuel at this time. (See ECF Nos. 9-19 & 10-3; Exhibits 19 & 23.)

         Emanuel was 19 years old at the time of the change of plea. (See ECF No. 9-16, at 30; Exhibit 16.)[1]

         When the matter came on for sentencing two months later on July 29, 2013, Tannery informed the state district court that petitioner had been attempting to file proper person motions to withdraw his pleas on the ground that Tannery had coerced him into entering the pleas. The court allowed Tannery to withdraw as counsel and appointed Roy Nelson as replacement defense counsel. (ECF No. 10-5; Exhibit 25.)[2]

         The transcript from a September 16, 2013, status check proceeding reflected that Nelson had advised Emanuel that he believed that the more appropriate avenue for him to present his claims regarding the pleas would be through a post-conviction petition. A hearing was scheduled, however, so that Emanuel could cross-examine Tannery as to what Tannery may have promised him regarding his sentencing. (ECF No. 10-6; Exhibit 26.)

         Such an evidentiary hearing apparently did not occur prior to sentencing, however; and petitioner appeared instead for sentencing on October 23, 2013. Nelson represented Emanuel at the sentencing. (ECF Nos. 10-7 & 10-8; Exhibits 27 & 28.)

         On October 31, 2013, the state district court clerk received but did not file a proper person motion to vacate the judgment and withdraw plea due to ineffective assistance of counsel. The clerk did not file the motion because petitioner was represented by counsel. (See ECF No. 9-10, at 121-150; Exhibit 10.)

         No direct appeal was filed, although petitioner maintains that he tried to file a notice of appeal in proper person and that he told Nelson that he wanted to appeal. (See ECF No. 9-10, at 65-66; Exhibit 10.)

         When Emanuel later filed a state post-conviction petition, he presented and/or referred to claims that he was denied effective assistance of counsel because his prior counsel: (1) indicated that he could get a better deal than the State had offered but never got back to him thereafter about a plea deal; (2) failed to properly investigate the matter in order to secure a better plea deal; (3) failed to pursue a motion to withdraw plea; (4) failed to file a direct appeal; and (5) failed to communicate with petitioner's mother regarding mitigating evidence. (ECF No. 10-11, at 3-5, 7-9, 12-14 & 16; Exhibit 31.)

         Roy Nelson was appointed to represent Emanuel in the state post-conviction proceeding despite Nelson being the subject of a number of Emanuel's claims of ineffective assistance of counsel. Nelson filed a supplemental petition pursuing a claim only that Richard Tannery was ineffective in failing to properly explain to Emanuel the terms of ...


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