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McClain v. LeGrand

United States District Court, D. Nevada

April 16, 2019

JAMES DAVID McCLAIN, Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on Respondents' motion to dismiss. (ECF No. 75.)

         I. INTRODUCTION

         Petitioner James David McClain seeks to set aside his 2012 Nevada state conviction, pursuant to a guilty plea, of two counts of sexual assault of a child under 14 years of age. He is sentenced to two consecutive sentences of life with eligibility for parole after 35 years on each such consecutive sentence. Respondents seek the dismissal of the claims in the second amended petition as, inter alia, untimely and unexhausted.

         II. DISCUSSION

         A. Timeliness and Relation Back

         Respondents contend that all five grounds in the second amended petition (ECF No. 69) do not relate back to timely claims in the original petition (ECF No. 5) and therefore are untimely.

         A claim in an amended petition that is filed after the expiration of the limitation period will be timely only if the claim relates back to a timely-filed claim pursuant to Rule 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises out of “the same conduct, transaction or occurrence” as the timely claim. Mayle v. Felix, 545 U.S. 644 (2005). In Felix, the Supreme Court held that habeas claims in an amended petition do not arise out of “the same conduct, transaction or occurrence” as prior timely claims merely because the claims all challenge the same trial, conviction or sentence. Id. at 655-64. Rather, under the construction of the rule approved in Felix, 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.” Id. 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. Id. at 659, 659 n.5.[1]

         The five grounds in the second amended petition are to an extent interrelated and thus to an extent can be discussed together regarding relation back.

         In amended Ground I, McClain alleges that he was denied effective assistance of counsel when trial counsel failed to investigate his mental status and mental health history, including his borderline intellectual disability and history as a child sexual assault victim. He alleges, inter alia, that: (a) had counsel investigated his mental status and mental health history, counsel would not have advised him to plead guilty and he would not have pled guilty; and (b) such investigation would have revealed that the State could /// not prove all of the required elements of the sexual assault charges because McClain was incapable of understanding that the victim was mentally or physically incapable of resisting or understanding the nature of the conduct. (ECF No. 69 at 7-10.)

         In amended Ground II, McClain alleges that he was denied effective assistance when trial counsel failed to file a presentence motion to withdraw his guilty plea based upon his not being able to understand the consequences of his plea. (Id. at 10-11.)

         In amended Ground III, McClain alleges that he was denied effective assistance when trial counsel failed to present mitigation evidence at sentencing based upon the extreme poverty in which McClain grew up, his being raped as a minor and not receiving therapy, and his lifelong intellectual disability. (Id. at 11-13.)

         In amended Ground IV, McClain alleges that he was denied effective assistance because trial counsel failed to investigate his intellectual disability and mental status, which led to him entering a guilty plea that was not knowing and voluntary because he did not understand the nature of the plea and its consequences. (Id. at 13-15.)

         In amended Ground V, McClain alleges that he was denied effective assistance because trial counsel failed to advise him that he could file a direct appeal. He alleges that on appeal counsel could have challenged: (a) the voluntariness of his plea given his limited mental capacity and confusion about the consequences of the plea, referencing Grounds I, II and IV; and (b) the trial court's refusal to order a psychological examination requested by the defense at sentencing. (Id. at 15-16.)

         The Court is persuaded that amended Grounds I through IV relate back to McClain's pro se allegations in original Ground 1.

         McClain alleged in original Ground 1, inter alia, that: (a) he is of below average intelligence and mildly retarded; (b) trial counsel was ineffective for failing to investigate his mental status and mental history during the commission of the crime through a psychological/mental evaluation; (c) because of the lack of diligence of his counsel in not conducting a background history investigation, he did not knowingly, willingly or voluntarily enter into a plea, as he did not knowingly understand or voluntarily plead due to [lack of][2] competence; (d) he was prejudiced by his counsel not moving to have him evaluated and not investigating his special education schooling; and (e) he would have received a lesser sentence/lesser charge due to mitigating circumstances or would have proceeded to trial. (ECF No. 5 at 3.)

         The Court is persuaded in particular that the claims in amended Grounds I through IV and original Ground 1 are united by a common core of operative facts wherein trial counsel: (a) failed to investigate McClain's mental status and mental health history; and thereafter (b) failed to provide competent advice and/or seek appropriate relief following upon that lack of investigation, including failing to request a psychological evaluation, failing to properly advise McClain with regard to his plea, failing to challenge his plea, failing to challenge the commission of the crime based on his mental status and history, and failing to present mitigation evidence at sentencing. The Court is not persuaded that the additional factual specifics alleged within Grounds I through IV respectively prevent the claims from relating back. Nor is the Court persuaded that McClain's reliance upon a 2018 psychological evaluation-regarding his mental status and mental health history at the pertinent times-to prove his claims prevents the claims from relating back to the claims alleged in original Ground 1. The salient point is that the amended and original claims are united by a common core of operative facts. The assertion of further factual specifics in addition to the common core of operative facts and/or the presentation of newly developed evidence seeking to prove, inter alia, that common core of operative facts does not prevent relation back. See, e.g., Valdovinos v. McGrath, 598 F.3d 568, 574-76 (9th ...


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