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Doyle v. Filson

United States District Court, D. Nevada

May 23, 2018

ANTONIO LAVON DOYLE, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          ROBERT C. JONES, UNITED STATES DISTRICT JUDGE.

         Introduction

         This action is a petition for writ of habeas corpus by Antonio Lavon Doyle, a Nevada prisoner sentenced to death. The case is before the Court with respect to a motion to dismiss filed by the respondents. In that motion, respondents assert that various claims in Doyle's second amended habeas petition are barred by the statute of limitations, unexhausted in state court, procedurally defaulted, and not cognizable in this federal habeas corpus action. Doyle has, in turn, filed a motion for leave to conduct discovery and a motion for an evidentiary hearing. All three motions are fully briefed. The Court will grant the motion to dismiss in part and deny it in part, will deny Doyle's motion for leave to conduct discovery and his motion for evidentiary hearing, and will set a schedule for respondents to file an answer.

         Background

         In its opinion on Doyle's direct appeal, the Nevada Supreme Court described the factual background of this case as follows:

On January 16, 1994, the nude body of twenty-year-old Ebony Mason was discovered some twenty-five feet off the roadway in an unimproved desert area of Clark County, Nevada. The woman's body was found lying face down with hands extended overhead to a point on the ground where it appeared some digging had occurred. A four-inch twig protruded from the victim's rectum. Three distinct types of footwear impressions were observed in the area, none of which matched the tread design of a pair of women's athletic shows located on the nearby dirt road. Also observed in the area was a hole containing a broken condom, a condom tip, an open but empty condom package and two small packages of taco sauce.
In the opinion of the medical examiner, Mason died from asphyxia due to strangulation or blunt trauma to the head. The autopsy revealed nine broken ribs, multiple areas of external bruising, contusions, lacerations, abrasions, and a ligature mark on the anterior surface of the neck. Approximately 200 milliliters of fluid blood was found in Mason's chest cavity. Mason's back and chest bore a number patterned contusions consistent with footwear impressions found at the crime scene. Finally, the autopsy revealed severe laceration of the head and subarachnoid hemorrhage (a thin layer of blood surrounding the brain) indicating blunt force trauma to the skull. Laboratory analysis revealed traces of the drug PCP in Mason's system.
Michael Smith, who had been arrested in an unrelated matter, provided the police with the names of those he believed were responsible for the murder. Smith recounted statements made by Doyle regarding a killing to which Doyle claimed to have been a party. According to Smith, he and Doyle had overheard a girl tell some other people about her friend having been killed. At that time, Doyle commented to Smith that “we had to take someone out.” Doyle further stated that he, Darrin Anderson, Shawn Atkins, and “Bubba” Atkins were at Anderson's house with a girl and that each had sex with the girl. While they were taking the girl home, she told the men that she was going to report them for rape and jumped from the truck in which they were riding. They were eventually able to coax the girl back into the truck and decided to kill her rather than face possible rape charges. The girl was apparently so inebriated or under the influence of drugs that she was oblivious to the direction the men were travelling. When they arrived at a remote area, the girl was pulled from the truck and choked. Unsuccessful in their attempt to choke her4 to death, the men then beat the girl. Finally, Doyle told Smith, two of the men held the girl down while the other repeatedly dropped a brick on her face until she died.
With information obtained from Smith, the police contacted Darrin Anderson, the owner of a small, yellow pickup truck. According to Anderson, on the night of January 15, 1994, he was present with Doyle at the home of Shawn and “Bubba” Atkins. After arriving, the four left the Atkins residence to attend a nearby party. Anderson returned alone to the Atkins residence a short time later, and the other three returned thereafter in the company of Ebony Mason, who appeared inebriated or under the influence of drugs. Later, Mason asked for a ride home, and Anderson suggested that Doyle use Anderson's truck. At approximately 10:30 p.m., Doyle left with Mason and the Atkins brothers in Anderson's truck. Anderson awoke the next morning to find Doyle and the Atkins brothers asleep at the Atkins residence. When police later searched Anderson's truck, they found a pair of blood-stained white socks between the seats.
Further information led investigators to contact Mark Wattley, another of Doyle's friends. Wattley was present during a conversation where Doyle made statements describing how Shawn Atkins was unable to subdue Mason and how “Bubba” Atkins intervened “and hit her with a head punch and dropped her.” Thereafter, Doyle told Wattley that he (Doyle) began kicking Mason in the head. Eventually, one of the men grabbed a brick or rock and hit the girl in the head. At one point in the conversation, Doyle demonstrated how he (Doyle) jumped in the air and caused both of his feet to come down on Mason during the beating.
The police investigation eventually led to the execution of a search warrant at Doyle's residence. During the search, the police impounded a pair of Adidas athletic shoes with soles that apparently matched treadwear impressions found at the crime scene and on Mason's body. Doyle was then placed under arrest. After being advised of his Miranda rights, Doyle provided a statement to police explaining that he had been present when Mason was killed but that he did not participate in the killing. Later analysis of the impounded shoes confirmed that the treadwear impressions were consistent with the footwear impressions retrieved from the scene of the crime and observed upon Mason's body.
At trial, Doyle testified that on the night of January 15, 1994, “Bubba” Atkins brought Mason to the Atkins residence. Some time after her arrival, Mason asked for a ride downtown or home. Anderson then instructed Doyle to take Anderson's truck and take Mason home. Doyle testified that Mason wanted to engage in sex with him and the Atkins brothers, so all four drove to Doyle's apartment where each of the men had sex with Mason. Thereafter, the four left Doyle's apartment in Anderson's truck. Mason was riding in the back of the truck, and at some point, the truck stopped at a red light, and Mason jumped out of the truck. The Atkins brothers were eventually able to get Mason back in the truck, and the four proceeded to a deserted area outside Las Vegas.
Doyle further testified that, once stopped, Shawn Atkins hit Mason in the face and a fight ensued. When it appeared that Shawn Atkins was unable to subdue Mason, “Bubba” Atkins came to his aid. Doyle denied any participation in the beating or killing, stating that he had watched from the back of the truck as Shawn and “Bubba” Atkins beat and kicked the girl. Later, while he and Shawn Atkins attempted to push start the truck, Doyle testified that he saw “Bubba” Atkins standing over Mason with a brick raised overhead. “Bubba” Atkins later discarded the brick in a garbage can. According to Doyle, “Bubba” Atkins was wearing the athletic shoes impounded by the police from Doyle's apartment.

Opinion, Exhibit 225, pp. 2-5 (ECF No. 174-7, pp. 29-32).

         On January 12, 1995, a jury found Doyle guilty of first degree murder, conspiracy to commit murder, first degree kidnapping, and sexual assault. See Verdicts, Exhibit 155 (ECF No. 172-11). Following a penalty hearing, the jury voted to impose the death sentence for the murder. See Verdict, Exhibit 169 (ECF No. 173-10, p. 13). On May 23, 1995, the trial court sentenced Doyle to death for the murder. See Judgment of Conviction, Exhibit 157 (ECF No. 173-2). Additionally, the court sentenced Doyle to six years in prison for the conspiracy to commit murder, life in prison with the possibility of parole for the kidnapping, and life in prison with the possibility of parole for the sexual assault; the life sentences run consecutively to the death sentence and to one another, and the six-year sentence runs concurrently with the other sentences. See id.

         Doyle appealed. See Appellant's Opening Brief, Exhibit 172 (ECF No. 173-10, pp. 20-64). The Nevada Supreme Court reversed the sexual assault conviction, finding that there was insufficient evidence to show beyond a reasonable doubt that the victim was alive when the sexual assault occurred. See Opinion, Exhibit 225, pp. 16-22 (ECF No. 174-7, pp. 43-49). The Nevada Supreme Court affirmed Doyle's convictions of first degree murder, conspiracy to commit murder, and first degree kidnapping, as well as the sentences relative to those convictions. See id. The court denied rehearing on June 23, 1997. See Order Denying Rehearing, Exhibit 175 (ECF No. 173-10, p. 92).

         Doyle then filed a petition for writ of habeas corpus in the state district court on June 26, 1997. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 176 (ECF No. 174, pp. 2-41); Memorandum of Points and Authorities in Support of Petition for Post-Conviction Relief, Exhibit 177 (ECF No. 174, pp. 43-67). The court held an evidentiary hearing. See Transcript of Evidentiary Hearing, Respondents' Exhibit 3 (ECF Nos. 209-4, 209-5). The state district court then denied the petition on October 1, 1998. See Findings of Fact, Conclusions of Law and Order, Exhibit 181 (ECF No. 74, pp. 94-98). Doyle appealed. See Appellant's Opening Brief, Exhibit 182 (ECF No. 174-2, pp. 2-39). The Nevada Supreme Court affirmed on February 3, 2000. See Opinion, Exhibit 184 (ECF No. 174-3, pp. 2-18). The Nevada Supreme Court issued its remittitur on April 13, 2000. See Remittitur, Respondents' Exhibit 5 (ECF No. 209-7).

         Doyle initiated this federal habeas corpus action on February 28, 2000, by submitting a pro se petition for writ of habeas corpus for filing (ECF No. 4). The Court appointed counsel for Doyle. See Order entered May 2, 2000 (ECF No. 3). Approximately eight years later, on May 14, 2008, following extensive discovery proceedings, Doyle filed a first amended habeas petition (ECF No. 168).

         Respondents moved to dismiss the first amended petition, arguing that it contained claims that were unexhausted in state court (ECF No. 208). In response, Doyle moved for a stay, to allow him to exhaust his claims in state court before proceeding with this action (ECF No. 218). On December 18, 2009, the Court granted Doyle's motion, and stayed this action; the Court denied the motion to dismiss as moot (ECF No. 230).

         On July 24, 2009, Doyle filed, in the state district court, a second state petition for writ of habeas corpus. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 295 (ECF No. 265-3). On February 14, 2013, the court dismissed the petition, finding it barred by the statute of limitations (NRS § 34.726), and by the laches doctrine (NRS § 34.800). See Findings of Fact, Conclusions of Law and Order, Exhibit 300 (ECF No. 266-2). Doyle appealed. See Appellant's Opening Brief, Exhibit 301 (ECF No. 266-3). The Nevada Supreme Court affirmed on September 22, 2015. See Order of Affirmance, Exhibit 304 (ECF No. 266-6). The court denied rehearing on December 2, 2015. See Order Denying Rehearing, Exhibit 306 (ECF No. 266-8). The United States Supreme Court denied certiorari on May 2, 2016. See Doyle v. Nevada, 136 S.Ct. 1829 (2016). The Nevada Supreme Court issued its remittitur on May 6, 2016. See Remittitur, Exhibit 1 to Motion to Vacate Stay (ECF No. 256-1).

         This Court then lifted the stay of this action on June 28, 2016 (ECF No. 258). And, on October 28, 2016, Doyle filed a second amended petition for writ of habeas corpus (ECF No. 265) now the operative petition. Doyle's second amended petition asserts the following claims:

1. “[P]rosecutors excused prospective jurors on the basis of race, ” in violation of Doyle's federal constitutional rights. Second Amended Petition (ECF No. 265), pp. 11-35.
2. Trial counsel were ineffective, in the penalty phase of the trial, in violation of Doyle's federal constitutional rights, for “failing to investigate and present mitigating evidence.” Id. at 35-97.
3A. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to object to improper victim-impact testimony during the guilt phase of trial.” Id. at 98-100.
3B. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to object to prosecutors' misrepresentation of facts regarding the [Edwards] homicide.” Id. at 100-06.
3C. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to object to prosecutors' use of gender to excuse prospective juror Emma Samuels.” Id. at 106-08.
3D. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to seek exclusion of hearsay statements.” Id. at 108-10.
3E. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to prepare Mr. Doyle for his testimony.” Id. at 110-11.
3F. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, for failing “to clarify when they could not hear or understand the trial judge.” Id. at 111.
3G. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to move to suppress the evidence recovered as a result of the search warrant.” Id. at 111-18.
3H. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to object to the introduction of a pair of stained pants without any explanatory testimony.” Id. at 118-20.
3I. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to object to prejudicial and multiple enlarged photographs of the victim.” Id. at 120-21.
3J. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, for failing “to present evidence impeaching Michael Smith's testimony.” Id. at 121-23.
3K. Trial counsel were ineffective, in violation of Doyle's federal constitutional rights, “for failing to request an instruction for the lesser-included offense of second-degree kidnapping.” Id. at 123-24.
4. In violation of Doyle's federal constitutional rights, “the prosecutor introduced statements made by Mr. Doyle's codefendant without affording Mr. Doyle the opportunity to cross-examine ….” Id. at 125-27.
5. Doyle's federal constitutional rights were violated “because of the admission of impermissible and unduly prejudicial victim-impact evidence.” Id. at 128-37.
6A1. Doyle's federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor improperly argued about mercy.” Id. at 139.
6A2. Doyle's federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor misled the jury about life with parole sentencing.” Id. at 140-41.
6A3. Doyle's federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor mislead the jury about mitigation.” Id. at 141-42.
6A4. Doyle's federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor improperly expressed his opinion about the propriety of the death penalty.” Id. at 142.
6A5. Doyle's federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor scared the jury into sentencing Mr. Doyle to death.” Id. at 143.
6A6. Doyle's federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor improperly equated the death penalty with self-defense.” Id. at 144.
6A7. Doyle's federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor misled the jury about Mr. Doyle's involvement in a drive-by shooting.” Id. at 144-45.
6A8. Doyle's federal constitutional rights were violated as a result of prosecutorial misconduct because “[t]he prosecutor misrepresented the testimony of Gary and Maria Mason.” Id. at 145-47.
7. Doyle's federal constitutional rights were violated “because the prosecutors failed to disclose material evidence under Brady v. Maryland, and knowingly presented false testimony in violation of Napue v. Illinois.” Id. at 148-69.
8E1. Doyle's federal constitutional rights were violated because “Mr. Doyle cannot be guilty of both first-degree kidnapping predicated on murder and first-degree murder predicated on kidnapping.” Id. at 176-79.
8E2. Doyle's federal constitutional rights were violated because “[t]he invalidity of Mr. Doyle's sexual assault conviction invalidates his first-degree kidnapping and first-degree murder convictions.” Id. at 179-83.
8E3. Doyle's federal constitutional rights were violated because “[t]he Nevada Supreme Court improperly reweighed Mr. Doyle's aggravating and mitigating circumstances after striking the kidnapping aggravating circumstance.” Id. at 183-87.
9A1. Doyle's federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court failed to properly instruct the jury as to the elements of first-degree premeditated and deliberate murder.” Id. at 188-94.
9A2. Doyle's federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court's reasonable doubt instruction was improper.” Id. at 194-96.
9A3. Doyle's federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court's malice aforethought instruction was improper.” Id. at 196-97.
9A4. Doyle's federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court's specific intent instruction was improper.” Id. at 197-200.
9A5. Doyle's federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he trial court's guilt or innocence instruction was improper.” Id. at 200-01.
9A6. Doyle's federal constitutional rights were violated, in the guilt phase of his trial, as a result of improper jury instructions, because “[t]he kidnapping instructions reduced the state's burden of proof, allowing the jury to find first-degree kidnapping based merely on second-degree kidnapping.” Id. at 201-06.
9B1. Doyle's federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court improperly answered the jury's question regarding comparative culpability.” Id. at 207-09.
9B2. Doyle's federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court improperly failed to give the presumption of life instruction.” Id. at 209-11.
9B3. Doyle's federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court's reasonable doubt instruction was improper.” Id. at 211.
9B4. Doyle's federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court's Edmund instruction was improper.” Id. at 211-13.
9B5. Doyle's federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court improperly failed [to] instruct the jury to find mitigating circumstances did not outweigh aggravating circumstances beyond a reasonable doubt.” Id. at 213-16.
9B6. Doyle's federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court improperly failed to give the jury a form to indicate a finding that mitigating circumstances outweighed aggravating circumstances, creating an unconstitutional presumption of death.” Id. at 216-21.
9B7. Doyle's federal constitutional rights were violated, in the penalty phase of his trial, as a result of improper jury instructions, because “[t]he trial court's anti-sympathy instruction was unduly prejudicial.” Id. at 221-22.
10. Doyle's federal constitutional rights were violated as a result of “the trial court's failure to record critical proceedings.” Id. at 223-25.
11. Doyle's death sentence is invalid, under the federal constitution, because “execution by lethal injection violates the constitutional prohibition against cruel and unusual punishments and his rights under the First and Fourteenth Amendments.” Id. at 226-53.
12. Doyle's death sentence is invalid, under the federal constitution, “because his death sentence is the product of purposeful race discrimination by state officials.” Id. at 254-57.
13. Doyle's conviction and sentence violate the federal constitution “because Mr. Doyle's capital trial, sentencing, and review on direct appeal were conducted before state judicial officers whose tenure in office was not during good behavior but whose tenure was dependent on popular election.” Id. at 258-62.
14. Doyle's death sentence is invalid, under the federal constitution, “because the Nevada capital punishment system operates in an arbitrary and capricious manner.” Id. at 263-71.
15. Doyle's death sentence is invalid, under the federal constitution, “due to the restrictive conditions on Nevada's death row.” Id. at 272-73.
16. Doyle's death sentence is invalid, under the federal constitution, “due to the jury finding the statutory aggravating circumstances that the murder was committed to avoid or prevent lawful arrest.” Id. at 274-89.
17A. Doyle's federal constitutional rights were violated because “[t]here was insufficient evidence for the jury to convict Mr. Doyle of conspiracy to commit murder.” Id. at 290-93.
17B. Doyle's federal constitutional rights were violated because “[t]here was insufficient evidence of first-degree kidnapping.” Id. at 293-94.
18. Doyle's death sentence is invalid, under the federal constitution, “due to the jury finding the statutory aggravating circumstances that the murder was committed by a person under sentence of imprisonment….” Id. at 296-97.
19. Doyle's conviction and death sentence are invalid under the federal constitution “because of the cumulative effect of the errors in this case.” Id. at 298-301.

         Respondents filed their motion to dismiss (ECF No. 277) on March 10, 2017, arguing that various claims in Doyle's second amended habeas petition are barred by the statute of limitations, unexhausted in state court, procedurally defaulted, and not cognizable in this federal habeas corpus action. Doyle filed an opposition to the motion to dismiss on August 7, 2017 (ECF No. 284). Respondents filed a reply on October 27, 2017 (ECF No. 292).

         On August 7, 2017, with his opposition to the motion to dismiss, Doyle filed a motion for discovery (ECF No. 286) and a motion for evidentiary hearing (ECF No. 287). Respondents filed oppositions to those motions on October 27, 2017 (ECF Nos. 293, 294). Doyle filed replies on December 18, 2017 (ECF Nos. 298, 299).

         Analysis

         Statute of Limitations Legal Standards

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), there is a statute of limitations applicable to federal habeas corpus petitions; it provides:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A-D).

         The petitioner is entitled to statutory tolling of the limitations period while a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

         The AEDPA statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010).

         Expiration of the Limitations Period in this Case

         Doyle's judgment of conviction became final on September 22, 1997, which was 90 days after the Nevada Supreme Court denied rehearing on Doyle's direct appeal. See Order Denying Rehearing, Exhibit 175 (ECF No. 173-10, p. 92); see also Clay v. United States, 537 U.S. 522, 528 n.3 (2003) (conviction final at expiration of 90-day period to seek certiorari following decision of highest state court); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (same).

         Doyle timely filed his first state petition for writ of habeas corpus on June 26, 1997, tolling the limitations period before it began to run. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 176 (ECF No. 174, pp. 2-41); see also 28 U.S.C. § 2244(d)(2). Doyle's first state habeas action concluded, and the statutory tolling ceased, on April 13, 2000, when the Nevada Supreme Court issued its remittitur after affirming the denial of Doyle's petition. See Remittitur, Respondents' Exhibit 5 (ECF No. 209-7). The limitation period for the filing of Doyle's federal habeas petition then began to run.

         Doyle submitted his original pro se petition (ECF No. 4) for filing, to initiate this case, on February 28, 2000. That petition was unquestionably timely filed.

         There was no statutory tolling of the limitations period by virtue of the pendency of this federal habeas corpus action. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (pendency of federal habeas corpus action does not toll AEDPA limitations period). Therefore, absent equitable tolling, the limitations period ran out on April 14, 2001.

         Doyle did not file his first amended petition (ECF No. 168) until May 14, 2008, more than seven years after the limitations period ran out. His second amended petition was filed more than eight years after that, on October 28, 2016 (ECF No. 265). Therefore, unless Doyle can show that equitable tolling is warranted, the question of the timeliness of the claims in his second amended petition turns upon whether the claims in that petition relate back to the filing of his timely original petition. In Mayle v. Felix, 545 U.S. 644 (2005), the Supreme Court held that “[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order, ” but “[a]n amended habeas petition ... does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle, 545 U.S. at 650, 664.

         Equitable Tolling

         Doyle argues that he is entitled to equitable tolling because he relied upon the Court's scheduling orders in this case. See Opposition to Motion to Dismiss (ECF No. 284), pp. 4-13.

         The AEDPA limitations period is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010). A petitioner may be entitled to equitable tolling if he can show “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see also Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (“[T]he requirement that extraordinary circumstances stood in [the petitioner's] way suggests that an external force must cause the untimeliness, rather than ... merely oversight, miscalculation or negligence on [the petitioner's] part, all of which would preclude the application of equitable tolling.” (internal quotations and citations omitted)); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (“The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness ... and that the extraordinary circumstances made it impossible to file a petition on time.” (internal quotations, citations, and alteration omitted)). “The high threshold of extraordinary circumstances is necessary ‘lest the exceptions swallow the rule.'” Lakey v. Hickman, 633 F.3d 782, 786 (9th Cir. 2011), quoting Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006). It is the habeas petitioner's burden to establish that equitable tolling is warranted. Pace, 544 U.S. at 418; Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.”). Doyle does not show that equitable tolling is warranted.

         Doyle argues, essentially, that he is entitled to equitable tolling because he relied upon the Court's scheduling orders in determining when to file his amended petition. See Opposition to Motion to Dismiss, pp. 4-13. Instructions from a court do not serve as a basis for equitable tolling unless the court “affirmatively misled” the petitioner. Ford v. Pliler, 590 F.3d 782, 786-87 (9th Cir. 2009). There is no showing by Doyle that he was affirmatively misled. The Court's scheduling orders granted leave for Doyle to conduct discovery, set time limits for Doyle to do investigation and conduct discovery, and set time limits for Doyle to file his amended petition; those orders certainly were not extraordinary in any way, and they did not make any statement about, or have any bearing on, the operation of the statute of limitations. Doyle has not made any factual allegation, and he has not proffered any evidence, suggesting otherwise.

         Moreover, the United States Supreme Court decided Mayle on June 23, 2005, holding that an amended habeas petition does not relate back when it asserts a new ground for relief supported by facts that differ in both time and type from those set forth in the original pleading. Mayle, 545 U.S. at 650. If Doyle and his counsel were under any misconception about whether new claims in an amended petition would relate back to Doyle's original petition, Mayle cleared that up. However, despite the import of Mayle, Doyle did not file his first amended habeas petition until May 14, 2008, almost three years after Mayle clarified the law regarding the relation back of claims in amended habeas petitions.

         Doyle has not shown that any extraordinary circumstance prevented timely filing of his first and second amended habeas petitions. See Holland, 560 U.S. at 649. Equitable tolling is not warranted.

         Exhaustion of State Court Remedies

         Legal Standards

         A federal court may not grant relief on a habeas corpus claim not exhausted in state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is designed to give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present that claim to the State's highest court, and must give that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). The “fair presentation” requirement is satisfied when the claim has been presented to the highest state court by describing the operative facts and the legal theory upon which the federal claim is based. See Anderson v. Harless, 459 U.S. 4, 6 (1982); Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir.1982), cert. denied, 463 U.S. 1212 (1983). To fairly present a federal constitutional claim to the state court, the petitioner must alert the court to the fact that he asserts a claim under the United States Constitution. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir.1999), cert. denied, 529 U.S. 1009 (2000), citing Duncan, 513 U.S. at 365-66.

         Nevada Supreme Court's Mandatory Review under NRS § 177.055

         With respect to several of his claims - namely, Grounds 5, 6A1, 6A2, 6A3, 6A4, 6A5, 6A6, 6A7, 6A8, 9B1, 9B2, 9B3, 9B4, 9B5, 9B6, 9B7, 12, 14, 16 and 18 - Doyle argues that the Nevada Supreme Court addressed his claims, on his direct appeal, as part of its mandatory review under NRS § 177.055. See Opposition to Motion to Dismiss (ECF No. 287), pp. 72-85. NRS § 177.055 requires the Nevada Supreme Court to consider whether the evidence supported the finding of the aggravating circumstances; whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor; and whether the death sentence was excessive. Doyle argues that, by virtue of this provision, the Nevada Supreme Court ruled upon the subject federal constitutional claims in this case.

         To show that a claim was exhausted on account of the Nevada Supreme Court's mandatory review under NRS § 177.055, Doyle must show that the claims at issue were “clearly encompassed” within the scope of NRS § 177.055 and “readily apparent” in the record reviewed by the Nevada Supreme Court. See Comer v. Schriro, 463 F.3d 934, 954-56 (9th Cir. 2006).

         As is discussed further below with respect to the individual claims, the Court determines that the claims at issue - again, Grounds 5, 6A1, 6A2, 6A3, 6A4, 6A5, 6A6, 6A7, 6A8, 9B1, 9B2, 9B3, 9B4, 9B5, 9B6, 9B7, 12, 14, 16 and 18 - were not clearly encompassed within the scope of NRS § 177.055, and Doyle has not shown them to have been “readily apparent” in the record reviewed by the Nevada Supreme Court. The Court finds that these claims were not exhausted on Doyle's direct appeal by virtue of the Nevada Supreme Court's mandatory review under NRS § 177.055.

         Anticipatory Default

         The Supreme Court has recognized that under certain circumstances it may be appropriate for a federal court to anticipate the state-law procedural bar of an unexhausted claim, and to treat such a claim as subject to the procedural default doctrine. “An unexhausted claim will be procedurally defaulted, if state procedural rules would now bar the petitioner from bringing the claim in state court.” Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (citing Coleman, 501 U.S. at 731).

         In light of the procedural history of this case, and, in particular, the rulings of the state courts in Doyle's second state habeas action, Doyle's unexhausted claims would be ruled procedurally barred in state court if Doyle were to return to state court to attempt to exhaust those claims. Therefore, the anticipatory default doctrine applies to Doyle's unexhausted claims, and the Court considers those claims to be technically exhausted, but subject to the procedural default doctrine. See Dickens, 740 F.3d at 1317; see also Motion to Dismiss (ECF No. 277), p. 38 (respondents' argument that anticipatory default doctrine should apply to unexhausted claims); Opposition to Motion to Dismiss (ECF No. 284), pp. 85-88 (Doyle's argument that anticipatory default doctrine should apply to unexhausted claims).

         Procedural Default

         Legal Standards

         In Coleman v. Thompson, the Supreme Court held that a state prisoner who fails to comply with the State's procedural requirements in presenting his claims is barred by the adequate and independent state ground doctrine from obtaining a writ of habeas corpus in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991) (“Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.”). Where such a procedural default constitutes an adequate and independent state ground for denial of habeas corpus, the default may be excused only if “a constitutional violation has probably resulted in the conviction of one who is actually innocent, ” or if the prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).

         To demonstrate cause for a procedural default, the petitioner must “show that some objective factor external to the defense impeded” his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears “the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989), citing United States v. Frady, 456 U.S. 152, 170 (1982).

         In Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court ruled that ineffective assistance of post-conviction counsel may serve as cause, to overcome the procedural default of a claim of ineffective assistance of trial counsel. In Martinez, the Supreme Court noted that it had previously held, in Coleman v. Thompson, 501 U.S. 722, 746-47 (1991), that “an attorney's negligence in a postconviction proceeding does not establish cause” to excuse a procedural default. Martinez, 566 U.S. at 15. The Martinez Court, however, “qualif[ied] Coleman by recognizing a narrow exception: inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 9. The Court described “initial-review collateral proceedings” as “collateral proceedings which provide the first occasion to raise a claim of ineffective assistance at trial.” Id. at 8.

         The Procedural Default in this Case

         On Doyle's direct appeal and the appeal in his first state habeas action, the Nevada Supreme Court addressed his claims on their merits. See Opinion, Exhibit 225, pp. 16-22 (ECF No. 174-7, pp. 43-49); Opinion, Exhibit 184 (ECF No. 174-3, pp. 2-18). Therefore, claims asserted by Doyle on his direct appeal and on the appeal in his first state habeas action were not procedurally barred in state court, and are not subject to the procedural default doctrine in this case.

         On Doyle's appeal in his second state habeas action, however, the Nevada Supreme Court ruled that his entire petition was untimely under NRS § 34.726, and barred by laches under NRS § 34.800. See Order of Affirmance, Exhibit 304 (ECF No. 266-6). Therefore, claims exhausted by Doyle in state court only in his second state habeas action are subject to the procedural default doctrine.

         Adequacy of the State Procedural Bars

         Doyle argues that the state procedural rules applied to bar his claims in his second state habeas action were not adequate to support application of the procedural default doctrine. See Opposition to Motion to Dismiss (ECF No. 284), pp. 89-111.

         A state procedural rule is “adequate” if it was “clear, consistently applied, and well-established at the time of the petitioner's purported default.” Calderon v. United States Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (citation and internal quotation marks omitted); see also Ford v. Georgia, 498 U.S. 411, 424 (1991) (state procedural rule adequate if “firmly established and regularly followed by the time as of which it is to be applied” (citation and internal quotation marks omitted)); Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001).

         In Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), the court of appeals established a burden-shifting test for analyzing adequacy. Under Bennett, the State carries the initial burden of pleading “the existence of an independent and adequate state procedural ground as an affirmative defense.” Bennett, 322 F.3d at 586. The burden then shifts to the petitioner “to place that defense in issue, ” which the petitioner may do “by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.” Id. If the petitioner meets this burden, “the ultimate burden” of proving the adequacy of the procedural rule rests with the State, which must demonstrate “that the state procedural rule has been regularly and consistently applied in habeas actions.” Id.; see also King v. Lamarque, 464 F.3d 963, 966-67 (9th Cir. 2006).

         Here, the respondents meet their initial burden under Bennett by asserting that NRS §§ 34.726 and 34.800 constituted independent and adequate state procedural grounds for the Nevada Supreme Court's rulings. See Motion to Dismiss (ECF No. 277), pp. 30-31; see also Bennett, 322 F.3d at 586. In response, Doyle argues that both NRS § 34.726 and 34.800 were inadequate to support application of the procedural default doctrine. See Opposition to Motion to Dismiss (ECF No. 284), pp. 93-111.

         Regarding NRS § 34.726, the Nevada statute of limitations, the Ninth Circuit Court of Appeals has held that rule to be adequate to support application of the procedural default defense. See Moran v. McDaniel, 80 F.3d 1261, 1269-70 (9th Cir. 1996); see also High v. Ignacio, 408 F.3d 585, 590 (9th Cir. 2005); Collier v. Bayer, 408 F.3d 1279, 1285 (9th Cir. 2005); Loveland v. Hatcher, 231 F.3d 640, 642-63 (9th Cir. 2000). The Ninth Circuit Court of Appeals has never ruled NRS § 34.726 to be inadequate. Nevertheless, Doyle argues that NRS § 34.726 is inadequate in his case. See Opposition to Motion to Dismiss (ECF No. 284), pp. 103-11. The Court finds that Doyle does not show NRS § 34.726 to be other than clear, consistently applied and well-established. The Nevada courts' exercise of discretion in isolated cases does not necessarily render procedural rules inadequate to support the procedural default defense in federal court. See Walker v. Martin, 562 U.S. 307, 319-21 (2011) (rule not automatically inadequate “upon a showing of seeming inconsistencies;” state court must be allowed discretion “to avoid the harsh results that sometimes attend consistent application of an unyielding rule”); see also Beard v. Kindler, 558 U.S. 53, 60-61 (2009) (“[D]iscretionary rule can be ‘firmly established' and ‘regularly followed' - even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.”). Doyle has not met his burden under Bennett, to assert specific factual allegations demonstrating the inadequacy of the statute of limitations in NRS § 34.726. NRS § 34.726 is adequate to support the procedural default defense asserted by respondents.

         Regarding, Nevada's laches rule, codified at NRS § 34.800, the Ninth Circuit has found that procedural rule, too, to be adequate for purposes of the procedural default doctrine. See Moran, 80 F.3d at 1270; see also Ybarra v. McDaniel, 656 F.3d 984, 990-91 (9th Cir. 2011). Here again, the Ninth Circuit Court of Appeals has never ruled NRS § 34.800 to be inadequate, but Doyle argues that NRS § 34.800 is inadequate in this case. See Opposition to Motion to Dismiss (ECF No. 284), pp. 93-103. However, again, the exercise of discretion in isolated cases does not necessarily render a procedural rule inadequate to support the procedural default defense in federal court. See Walker, 562 U.S. at 319-21; Beard, 558 U.S. at 60-61. Doyle has not met his burden under Bennett, to assert specific factual allegations demonstrating the inadequacy of the laches rule in NRS § 34.800. NRS § 34.800 is adequate to support the procedural default defense asserted by respondents.

         Independence of the State Procedural Bars

         Doyle also argues that the state procedural rules applied to bar his claims in state court, in his second state habeas action, were not applied independently of federal law. See Opposition to Motion to Dismiss (ECF No. 284), pp. 91-93.

         “For a state procedural rule to be ‘independent, ' the state law basis for the decision must not be interwoven with the federal law.” Park v. California, 202 F.3d 1146, 1152 (2000) (citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). The state procedural rule is “so interwoven if ‘the state has made application of the procedural bar depend on an antecedent ruling on federal law [such as] the determination of whether federal constitutional error has been committed.'” Id. (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).

         Doyle relies on a footnote in the Supreme Court's opinion in Rippo v. Baker, 137 S.Ct. 905 (2017) (per curiam), and contends that the procedural rules were not applied independently of federal law in this case because the Nevada Supreme Court considered the merits of his claims in determining that he did not show cause and prejudice to overcome the procedural bars. See Opposition to Motion to Dismiss (ECF No. 284), pp. 92-93. In Rippo, the Supreme Court reviewed, and overruled, the Nevada Supreme Court's holding regarding the ...


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