United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
the Court are the first amended petition for writ of habeas
corpus (ECF No. 11), respondents' motion to dismiss (ECF
No. 41), petitioner's opposition (ECF No. 44), and
respondents' reply (ECF No. 45). The Court finds that
grounds 5, 6, 7, and 9 of the first amended petition are
procedurally defaulted, and the Court dismisses them.
parties are familiar with the procedural history of this
case, and the Court recites only what it needs to resolve the
motion to dismiss. After petitioner's convictions were
upheld, he filed a proper-person post-conviction habeas
corpus petition in the state district court. (Exh. 51 (ECF
No. 13-28).) That petition includes claims that are now
grounds 6 and 7 of the federal first amended petition. The
state district court denied the petition. (Exh. 57 (ECF No.
13-34).) On appeal, the Nevada Supreme Court reversed and
remanded for appointment of counsel, and did not address the
merits of any of the claims. (Exh. 59 (ECF No. 13-36).) After
being appointed, counsel filed a supplemental petition. (Exh.
63 (ECF No. 14-2).) The state district court again denied the
petition. (Exh. 68 (ECF No. 14-7).) Petitioner appealed. As
to the claims that are now grounds 6 and 7, petitioner argued
only that the state district court erred because it did not
hold an evidentiary hearing on the original, proper-person
claims. (Exh. 77 at 19-20 (ECF No. 14-16 at 25-26).) The
Nevada Supreme Court noted that petitioner had not presented
any argument why the denials of those claims on their merits
were erroneous. (Exh. 83 at 5 (ECF No. 14-22).)
first state post-conviction habeas corpus petition,
petitioner did not raise the claims that are now grounds 5
and 9 of the federal first amended petition.
parties agreed that grounds 5, 6, 7, and 9 were not exhausted
in the state courts, and the Court stayed the action to allow
petitioner to exhaust them. (Order (ECF No. 35).)
filed another post-conviction habeas corpus petition in the
state district court. (Exh. 90 (ECF No. 37-1).) The state
district court determined that the petition was procedurally
barred because it was untimely under NRS § 34.726(1) and
successive or available in prior proceedings under NRS §
34.810. (Exh. 94 (ECF No. 37-5).) On appeal, the Nevada
Supreme Court affirmed for the same reasons. (Exh. 100 (ECF
No. 37-11).) Petitioner then returned to this Court, and the
motion to dismiss followed.
federal court will not review a claim for habeas corpus
relief if the decision of the state court regarding that
claim rested on a state-law ground that is independent of the
federal question and adequate to support the judgment.
Coleman v. Thompson, 501 U.S. 722, 730-31 (1991).
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Id. at 750; see also Murray v. Carrier, 477
U.S. 478, 485 (1986). The grounds for dismissal upon which
the Nevada Supreme Court relied in this case are adequate and
independent state rules. Vang v. Nevada, 329 F.3d
1069, 1074 (9th Cir. 2003) (NRS § 34.810); Loveland
v. Hatcher, 231 F.3d 640 (9th Cir. 2000) (NRS §
34.726); Moran v. McDaniel, 80 F.3d 1261 (9th Cir.
5, 6, 7, and 9 are claims of ineffective assistance of trial
counsel. In Martinez v. Ryan, 566 U.S. 1, 14 (2012),
the Supreme Court determined that when a state requires a
prisoner to raise an effective-assistance-of-trial counsel
claim in a collateral proceeding, a prisoner may show cause
for a default of such a claim in two ways:
The first is where the state courts did not appoint counsel
in the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where
appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v.
Washington, 466 U.S. 668 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying