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Warenback v. Neven

United States District Court, D. Nevada

February 12, 2018

DOUGLAS HARRY WARENBACK, Petitioner,
v.
D.W. NEVEN, et al., Respondents.

          ORDER (ECF NOS. 42, 61, 62, 63, 66)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         This 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).

         I. Procedural History and Background

         On June 19, 2013, Warenback pleaded guilty to pandering of a child (exhibit 10).[1] 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.

         Warenback 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.

         He also 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.

         Warenback 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.

         Meanwhile, 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.

         II. Legal Standards & Analysis

         a. Relation Back

         Respondents 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).

         Here, 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 timely.

         Ground 4

         Warenback 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 ...


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