United States District Court, D. Nevada
BARBARA A. PINKSTON, Petitioner,
SHERYL FOSTER, et al., Respondents.
J. DAWSON UNITED STATES DISTRICT JUDGE
habeas matter comes before the court on respondents'
motion to dismiss certain claims in petitioner Barbara A.
Pinkston's counseled second-amended petition (ECF No.
87). Pinkston opposed (ECF No. 91), and respondents replied
(ECF No. 93).
Procedural History and Background
September 19, 1997, a jury convicted Pinkston of first-degree
murder with a deadly weapon (exhibit 49). A separate
penalty hearing was then held before a jury, and Pinkston was
sentenced to life in prison with the possibility of parole,
with a consecutive term of life with the possibility of
parole for the deadly weapon enhancement. Exh. 52. Judgment
of conviction was entered on November 7, 1997. Exh. 55.
Nevada Supreme Court dismissed Pinkston's direct appeal
on March 2, 2000. Exh. 62. The state district court conducted
an evidentiary hearing on Pinkston's counseled, state
postconviction habeas corpus petition and ultimately denied
the petition. Exhs. 82, 93. On June 27, 2007, the Nevada
Supreme Court affirmed the denial of the state postconviction
petition. Exh. 101.
filed her federal habeas petition September 26, 2007 (ECF No.
1). This court appointed the Federal Public Defender as
counsel for Pinkston (ECF No. 6).
court granted a conditional writ of habeas relief on ground 3
- a claim that Pinkston was denied Fifth and Fourteenth
Amendment due process because the trial court's jury
instructions failed to adequately distinguish between the
elements of malice aforethought, premeditation, and
deliberation (ECF No. 42). The Ninth Circuit reversed in
light of its decision several days earlier in Babb v.
Lozowsky, 719 F.3d 1019 (9th Cir. 2013) and
remanded for consideration of the remaining claims (ECF Nos.
second amended petition sets forth the nine grounds from her
first amended petition (with placeholder, as instructed by
this court) and adds ground 10 (ECF No. 69). As ground 10,
Pinkston contends that the Nevada Supreme Court violated her
Fifth and Fourteenth Amendment due process rights when it
failed to apply the rule announced in Byford v.
State, 994 P.2d 700, 712 (Nev. 2000) to her case because
Byford narrowed the scope of conduct that could be
defined as premeditated murder before Pinkston's
conviction became final. Id. at 45-47.
returned to state court and filed a counseled, state
postconviction petition raising ground 10, and this court
granted a stay and abeyance (ECF No. 81). On April 14, 2016,
the Nevada Supreme Court affirmed the denial of the second
postconviction petition. Exh. 136. This court granted
Pinkston's motion to reopen this action, and respondents
now move to dismiss certain claims as procedurally barred or
for failure to state a claim for which federal habeas relief
may be granted (ECF Nos. 84, 87).
originally filed a motion to dismiss grounds 2, 3, 5, and 6
from the first-amended petition as procedurally defaulted
(ECF No. 30). See Coleman v. Thompson, 501 U.S. 722,
noted above, the second-amended (operative) petition sets
forth the grounds from the first-amended petition and adds
ground 10 (ECF No. 69). In this court's order granting
the first motion to dismiss in part, the court deferred
consideration of the procedural default defense as to these
claims until after the filing of the answer and reply (ECF
No. 33, pp. 7-8). The court stated in particular that ground
9 raised ineffective assistance of appellate counsel for
failure to present federal grounds 2, 3, 5, and 6 to the
Nevada Supreme Court as federal substantive claims.
Therefore, the court deferred a decision on these grounds to
the merits disposition. Id.
subsequently filed the answer to the remaining claims in the
first-amended petition (ECF No. 35) and Pinkston replied (ECF
No. 40). In this court's order adjudicating the merits of
the first-amended petition the court only reached ground 3.
to the second-amended petition (which is the same as the
first-amended petition but adds ground 10) respondents have
renewed their arguments as to grounds 2, 3, 5, and 6; they
also move to dismiss several grounds for failure to state a
claim, and they argue that ground 9B3 as well as newly-added
ground 10 are precluded by White v. ...