United States District Court, D. Nevada
ORDER (ECF NOS. 42, 61, 62, 63, 66)
P. GORDON UNITED STATES DISTRICT JUDGE
pro se habeas matter under 28 U.S.C. § 2254
comes before the court on respondents' motion to dismiss
petitioner Douglas Harry Warenback's amended petition
(ECF No. 42). Warenback opposed (ECF No. 43), and respondents
replied (ECF No. 50).
Procedural History and Background
19, 2013, Warenback pleaded guilty to pandering of a child
(exhibit 10). The state district court sentenced him to
a term of 48 to 120 months. Exh. 13. Judgment of conviction
was filed on December 17, 2013. Exh. 15.
did not file a direct appeal. The Supreme Court of Nevada
affirmed the denial of his state postconviction habeas corpus
petition on April 14, 2015, and remittitur issued on May 11,
2015. Exhs. 91, 93. Warenback also filed a petition for writ
of certiorari with the Supreme Court of Nevada. Exhs. 70.
That court declined to exercise original jurisdiction and
dismissed the petition for writ of certiorari without
considering it on the merits. Exh. 74.
filed two petitions for writ of mandamus. Exhs. 71, 87. The
Supreme Court of Nevada declined to exercise original
jurisdiction over either petition in an order dated July 23,
2015. Exh. 101.
filed a second state postconviction petition on September 14,
2015. Exh. 108. The Nevada Court of Appeals affirmed the
denial of the petition on May 18, 2016. Exh. 127.
Warenback dispatched his federal petition for mailing on
September 13, 2015. ECF No. 11. Respondents now argue that
the court should dismiss several grounds of the amended
petition. ECF No. 42.
Legal Standards & Analysis
argue that ground 4 does not relate back to a timely-filed
petition and should thus be dismissed as untimely. ECF No.
42, pp. 5-8. A new claim in an amended petition that is filed
after the expiration of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) one-year limitation period
will be timely only if the new claim relates back to a claim
in a timely-filed pleading under Rule 15(c) of the Federal
Rules of Civil Procedure; the claim must arise out of
“the same conduct, transaction or occurrence” as
a claim in the timely pleading. Mayle v. Felix, 545
U.S. 644 (2005). In Mayle, the United States Supreme
Court held that habeas claims in an amended petition do not
arise out of “the same conduct, transaction or
occurrence” as claims in the original petition merely
because the claims all challenge the same trial, conviction
or sentence. 545 U.S. at 655-64. Rather, Rule 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.” 545 U.S. at 657. In this regard, the
reviewing court looks to “the existence of a common
‘core of operative facts' uniting the original and
newly asserted claims.” 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. 545 U.S. at 659 and n.5; Ha Van Nguyen v.
Curry, 736 F.3d 1287, 1297 (9th Cir. 2013).
Warenback timely dispatched his original federal habeas
petition for filing on September 13, 2015. ECF No. 11, p. 1.
According to respondents, the AEDPA one-year limitation
period expired on or about June 1, 2016. Warenback believes
the limitation period expired in November 2015. ECF No. 43,
p. 5. In any event, the parties do not dispute that the
statute of limitation had expired when Warenback dispatched
his amended petition for mailing about March 7, 2017.
See ECF No. 42, p. 6; ECF No. 43, p. 5. Accordingly,
the claims in the amended petition must relate back to
Warenback's original petition in order to be deemed
claims in the amended petition that his counsel was
ineffective in violation of his Sixth Amendment rights
because counsel waived Warenback's rights at the guilty
plea hearing without Warenback's express consent. ECF No.
40, p. 9. Respondents argue that ground 4 does not relate
back to the amended petition. ECF No. 42, pp. 5-8. After
reviewing Warenback's original petition and the arguments
in his opposition, I find that ground 4 of the ...