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Keller v. Baca

United States District Court, D. Nevada

February 13, 2018

BRET KELLER, Petitioner,
ISIDRO BACA, et al., Respondents.



         This pro se petition for a writ of habeas corpus comes before the Court on the respondents' motion to dismiss (ECF No. 14). Petitioner has opposed (ECF No. 31), and respondents have replied (ECF No. 35). In addition, petitioner has moved for an extension of time to file a response to the respondents' reply (ECF No. 37). Finally, petitioner has moved the Court for appointment of counsel (ECF No. 38).

         I. BACKGROUND

         In this action, petitioner challenges his conviction pursuant to a guilty plea of attempted murder. (ECF No. 7; Exh. 10.[1])

         On September 14, 2011, petitioner signed a waiver of preliminary examination in which he agreed to plead guilty to attempted murder. (Exh. 5.) The document provided that the parties would be free to argue for his sentence, that certain other cases against petitioner would be dismissed, that petitioner would also plead guilty to a separate charge of domestic battery, second offense, and that no other charges or enhancements would be filed. (Id.; see also Exh. 8 (Tr. at 3-4).) That same date, an information was filed in the Second Judicial District Court charging petitioner with the attempted murder of Kimberly Keller and Thomas A. on or about July 13, 2011. (Exh. 6.)

         On September 27, 2011, petitioner appeared at his arraignment with counsel Scott Edwards and entered a plea of guilty to the charge of attempted murder. (Exh. 8.) Sentencing was initially scheduled for November 8, 2011, but on that date Edwards appeared before the state trial court and represented that the petitioner's presentence investigation report had not yet been disclosed. (Exh. 9.) At counsel's request, sentencing was continued to November 22, 2011. (See id.)

         On November 22, 2011, after hearing from the victim and her daughter, the court sentenced petitioner to a term of 96 to 240 months' imprisonment. (Exh. 9A.) Petitioner appealed. (Exh. 12.) On appeal, petitioner - still represented by Edwards - argued that the trial court improperly considered the victim's daughter's impact statement because during it she (1) stated that she did not believe petitioner felt remorse and (2) referenced prior uncharged acts of domestic violence. (Exh. 26.) On July 25, 2012, the Nevada Supreme Court affirmed. (Exh. 28.) In particular, the court noted that petitioner had not objected to the daughter's impact statement and thus his claims were subject to review only for plain error. (Id.) Remittitur on the direct appeal issued on August 21, 2012. (Exh. 29.)

         On June 12, 2013, petitioner filed in state court a motion for a sixty-day extension of time to file his petition for writ of habeas corpus and a motion for withdrawal of attorney and transfer of records. (Exhs. 32 & 33.) In the motions, which were dated June 5, 2013, petitioner represented that Edwards had not provided him with his opening brief on direct appeal and asked the court to order Edwards to transfer petitioner his case file. (Exhs. 32 & 33.)

         On July 15, 2013, petitioner filed a petition for writ of habeas corpus in state court. (Exh. 38.) The petition asserted one ground: Sixth Amendment ineffective assistance of counsel. Petitioner alleged counsel was ineffective based on: “(1) No. time afforded for investigation or preparation”; (2) “P.S.I. not received until morning of sentence”; (3) “Last minute plea bargain with threat. Take it or leave it”; and (4) “Unprofessional conduct in court on presentence 11/8/11 under the influence. Several witnesses.” (Exh. 38.) On July 16, 2013, the state court granted petitioner's motion to withdraw and for the transfer of his records. (Exh. 39.)

         On September 4, 2013, petitioner filed a motion to compel Edwards to comply with the court's order directing transfer of his records and a motion for sanctions regarding the failure to comply. (Exhs. 41 & 42.) On January 6, 2014, petitioner filed a document with the state court indicating that Edwards still had not complied with the court's order to transfer petitioner's files. (Exh. 43.)

         On January 17, 2014, the state court appointed Karla Butko to represent petitioner in his postconviction proceedings. (Exh. 44.) Butko thereafter filed a supplemental habeas petition asserting further ineffective assistance of counsel claims. (Exh. 45.) After the trial court denied the petition, petitioner appealed. (Exhs. 52 & 55.) The Nevada Supreme Court affirmed on June 19, 2015, and remittitur issued on July 13, 2015. (Exhs. 68 & 69.)

         On or about November 16, 2015, petitioner dispatched the instant federal habeas petition for filing. (See ECF No. 1; ECF No. 7 at 29.) On that same date, petitioner filed a second state habeas petition. (Exh. 72.) The state trial court denied the second state habeas petition as untimely and successive, among other procedural bars, and the Nevada Court of Appeals affirmed. (Exhs. 81 & 92).

         Respondents move to dismiss the instant federal petition on several procedural grounds, including timeliness, exhaustion, and procedural default. Respondents further argue that several of petitioner's claims are not cognizable in habeas.

         II. ANALYSIS

         A. Timeliness

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year period of limitations for federal habeas petitions filed by state prisoners. The one-year limitation period begins to run after the date on which the judgment challenged became final by the conclusion of direct review or the expiration of the time for seeking such direct review, unless it is otherwise tolled or subject to delayed accrual.[2] 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled while “a properly filed application for State post-conviction or other collateral review” is pending. Id. § 2244(d)(2). An untimely state habeas petition is not “properly filed” and thus does not toll the limitations period. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005). In addition, a state habeas petition cannot toll a federal limitations period that has already expired by the time the state petition is filed. Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).

         The Nevada Supreme Court affirmed petitioner's conviction on July 25, 2012. Petitioner's judgment of conviction thus became final on October 23, 2012 - after the 90-day period to seek certiorari from the United States Supreme Court expired. Accordingly, the time period for filing a federal habeas petition began to run on October 24, 2012. On July 15, 2013, petitioner filed his state postconviction habeas petition. The time during which that petition was pending tolled the limitations period under the statute. Two hundred and sixty-five (265) days elapsed between the date petitioner's judgment became final and the filing of his state postconviction petition. The Nevada Supreme Court issued remittitur on its decision affirming the denial of the petition on July 13, 2015. Absent a basis for tolling or other delayed accrual, then, the limitations period expired 100 days after July 13, 2015, on October 21, 2015. Petitioner filed his federal petition, at the earliest, on November 16, 2015. Accordingly, unless petitioner establishes a basis for tolling or other delayed accrual, the instant petition was filed twenty-six (26) days after the expiration of the federal statute of limitations.

         In his opposition, petitioner asserts that he is entitled to equitable tolling. A petitioner can establish an entitlement to equitable tolling under certain, very limited circumstances. Equitable tolling is appropriate only if the petitioner can show that: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable tolling is “unavailable in most cases, ” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule, ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner ultimately has the burden of proof on this “extraordinary exclusion.” Id. at 1065. He accordingly must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).

         Construed liberally, petitioner's opposition asserts that he is entitled to equitable tolling because he did not have his case file when he was preparing to file his state postconviction petition.[3] (ECF No. 31 at 10-11.) While the complete lack of a case file might, under some circumstances, justify equitable tolling, see Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009); Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002), petitioner's allegation does not - standing alone - establish an entitlement to tolling. Petitioner has not established his own diligence before June 5, 2013, when he first decided to seek his file from his attorney, or “that the hardship caused by lack of access to his materials was an extraordinary circumstance that caused” the untimely filing of his federal petition. See Waldron-Ramsey, 556 F.3d at 1013. However, it is a non-frivolous claim of equitable tolling and thus further factual development would be required before the Court could rule on it. In the interests of judicial economy, the Court exercises its discretion to decline to decide the issue at this time. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (Court may properly deny petition on merits rather than reaching “the complex questions lurking in the time bar of the AEDPA.”), cert. denied, 535 U.S. 950 (2002); Cooper v. Calderon, 274 F.3d 1270, 1275 n. 3 (9th Cir. 2001) (per curiam) (denying petition on merits rather than remanding to consider equitable tolling); see also Day v. McDonough, 547 U.S. 198, 208-209 (2006) (“In lieu of an inflexible rule requiring dismissal whenever AEDPA's one-year clock has run . . . the State reads the statutes, Rules, and decisions in point to permit the exercise of discretion . . . to decide whether the administration of justice is better served by dismissing the case on statute of limitations grounds or by reaching the merits of the petition . . . . We agree.”).

         Accordingly, respondents' motion to dismiss the petition on the grounds that it is untimely will be denied without prejudice to renew in the answer. Should respondents choose to renew the timeliness argument in their answer, petitioner will - in his reply - explain and provide any available factual support demonstrating when and how he tried to obtain his file from Edwards and how the lack of his file prevented the timely filing of the instant habeas petition.

         B. Cognizable Claims

         1. ...

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