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Morris v. Baker

United States District Court, D. Nevada

April 10, 2018

BRENT MORRIS, Petitioner,
v.
RENEE BAKER, et al., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         This pro se habeas matter comes before the Court on petitioner's motion for appointment of counsel (ECF No. 43) and “Stipulation to Have This Court Rule on His Unexhausted Claims” (ECF No. 44). Respondents have responded to the stipulation (ECF No. 47). Petitioner has not replied, and the time for doing so has expired.

         In his “stipulation, ” petitioner asserts that two of the grounds previously found unexhausted by the Court are in fact exhausted. The Court therefore construes the stipulation, in part, as a motion for reconsideration.

         I. Appointment of Counsel

         There is no constitutional right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities of the case are such that denial of counsel would amount to a denial of due process, and where the petitioner is a person of such limited education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition in this case and all of petitioner's filings are sufficiently clear in presenting the issues that petitioner wishes to raise, and the legal issues are not particularly complex. Therefore, counsel is not justified, and the motion for appointment of counsel will be denied.

         II. Partial Reconsideration

         On December 8, 2017, the Court issued an order finding several of petitioner's claims to be unexhausted, including Ground 8 and Ground 10(B)(6) in part. In his stipulation, petitioner asserts that Grounds 8 and 10(B)(6) are exhausted as they have been addressed on their merits by the Nevada Supreme Court.

         Petitioner's argument relies on record documents that were not before the Court at the time it rendered its decision. Specifically, petitioner asserts that on August 4, 2015, he filed a motion to modify his sentence in the trial court, and that the Nevada Supreme Court affirmed the denial of the motion on September 19, 2016.[1] (ECF No. 44 at 13-14). Petitioner has provided the Court with a copy of the Nevada Supreme Court's decision. (ECF No. 44 at 32-34). Because petitioner has presented additional state court record documents that were not before the Court at the time of its decision, the Court will construe petitioner's statements in his stipulation as a motion for reconsideration of the Court's ruling on Grounds 8 and 10(B)(6). The Court has inherent authority to reconsider any of its rulings before they become final, absent some applicable rule or statute to the contrary. United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000).

         In Ground 8, petitioner asserts that the trial court erred in adjudicating petitioner a habitual criminal when it used prior convictions that were stale, trivial, and remote and failed to make a finding that habitual criminal status was fair and just. He further asserts that the adjudication was improper because a Michigan conviction on which it was partially based was vacated a few months after sentencing. (See ECF No. 25 at 58). Petitioner did not present Ground 8 to the Nevada Supreme Court in either his direct appeal or his appeal of the denial of his state post-conviction habeas petition, and thus the Court previously concluded the claim was unexhausted.

         It appears that petitioner's motion to correct illegal sentence, which the Nevada Supreme Court addressed in its order of September 19, 2016, exhausted petitioner's claim that his habitual criminal adjudication was improper insofar as it was based on an allegedly overturned conviction out of Michigan. (See ECF No. 44 at 32-34). The Court therefore reconsiders its prior order and concludes that Ground 8 is exhausted to that extent - but only to that extent. While petitioner's appeal of his motion also included the remaining assertions of Ground 8, the Nevada Supreme Court summarily rejected these arguments because they were outside the narrow scope of claims permissibly raised in a motion to correct illegal sentence.[2] (Id. at 34). Petitioner therefore presented these claims for “the first and only time in a procedural context in which [their] merits [would] not be considered, ” and as such, he did not fairly present the claims to the state's highest court. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Ground 8 therefore remains unexhausted to the extent it asserts the habitual criminal adjudication was improper because the trial court failed to make the necessary findings and relied on convictions that were stale, trivial, and remote.

         Although petitioner argues that Ground 10(b)6) is also exhausted by virtue of the motion to correct sentence, his argument fails. Ground 10(B)(6) asserts an ineffective assistance of appellate counsel claim based on the failure to raise the above substantive claims on direct appeal. The motion to correct illegal sentence did not raise any such claim, nor could it have done so. See Edwards v. State, 918 P.2d 321, 324 (Nev. 1996). Accordingly, the motion to reconsider is denied as to Ground 10(B)(6). The Court's previous finding that Ground 10(B)(6) is unexhausted in part therefore stands.

         III. Stipulation Regarding Unexhausted Claims

         In its December 8, 2017, order, the Court rejected the request of both parties to find petitioner's unexhausted claims subject to anticipatory default because it would not do so “absent an unequivocal stipulation by the petitioner that the unexhausted claims in fact would be denied on state procedural grounds if he returned to state court to present the claims.” (ECF No. 42 at 10). The Court directed petitioner to make one of three choices: (1) move for partial dismissal of only the unexhausted claims; (2) move to dismiss the entire petition without prejudice so he could return to state court to exhaust his unexhausted claims; or (3) file a motion for other appropriate relief, including a motion for a stay and abeyance so he could exhaust his claims in state court.

         Instead of filing one of the advised motions, petitioner filed a “Stipulation to Have the Court Rule on his Unexhausted Claims.” (ECF No. 44). In the stipulation, petitioner does not unequivocally stipulate that his claims would be procedurally barred if he returned to state court. Rather, he simply “stipulate[s] to having the Court reach the merits of [his] unexhausted” claims, (see, e.g., id. at 8), and makes conclusory assertions that the state courts would deny his claims on state procedural grounds without conceding specifically that any ground he could raise to establish cause in the state courts would be rejected by the state courts. While some of petitioner's possible cause arguments, such as ineffective assistance of counsel as to Grounds 2, 3, 6, and 7, have already been rejected on their merits by the state courts, petitioner does not stipulate that these are the only grounds he has available to establish cause as to those claims, nor has he unequivocally stipulated that he cannot meet the fundamental miscarriage of justice exception to procedural ...


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