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Kinder v. Legrand

United States District Court, D. Nevada

June 12, 2019

ROBERT LEGRAND, et al., Respondents.



         I. SUMMARY

         This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Petitioner Christopher Brian Kinder, a Nevada prisoner who is represented by counsel. Currently before the Court is Respondents' Motion to Dismiss (“Motion”) (ECF No. 40. Kinder has opposed (ECF No. 45), and Respondents have replied (ECF No. 55). For the reasons discussed below, Respondents' motion is granted in part and denied in part.


         A. Procedural History[1]

         Kinder challenges his 2012 state court conviction of two counts of Possession of Child Pornography pursuant to a conditional guilty plea. (ECF No. 41-24.) The guilty plea was conditioned upon Kinder's right to appeal a decision by the state district court for Nye County, Nevada, denying his motion to suppress evidence. (Id.) On November 29, 2012, the state court entered a judgment of conviction sentencing Kinder to 28 to 72 months for each count, with the second sentence running consecutively to the first. (ECF No. 41-27.) Kinder appealed through his trial counsel, Harold Kuehn. (ECF No. 41-29.) The Nevada Supreme Court affirmed Kinder's convictions on direct appeal and issued a remittitur on May 20, 2014. (ECF Nos. 42-12, 42-13.)

         In June 2015, Kinder sent a letter to the Nevada Supreme Court asking when his direct appeal had been decided, and why he had not been notified. (ECF No. 42-14 at 23.) Kinder claimed Kuehn was under investigation facing possible disbarment, [2] and Kinder had not received notice of the appellate decision or his case file. (Id.) In response, the Nevada Supreme Court sent Kinder a letter, stating that a decision was reached in his case, a remittitur had issued, and the time for filing a rehearing petition had expired. (Id. at 24.) Thus, Kinder's letter was returned unfiled, and he was instructed not to resubmit the document. (Id.)

         Kinder filed a pro se state habeas petition on August 24, 2015. (ECF No. 42-14.) He also moved for withdrawal of his counsel and delivery of records. (ECF Nos. 42-15, 42-16.) The state district court denied the petition as time-barred in October 2015. (ECF No. 42-20.) Kinder appealed. (ECF No. 42-21.) The Nevada Court of Appeals affirmed the state district court's ruling in May 2016. (ECF No. 42-29.) Kinder petitioned for review. (ECF No. 42-30.) On July 22, 2016, the Nevada Supreme Court denied review. (ECF No. 42-32.) Remittitur issued on August 16, 2016. (ECF No. 42-34.)

         B. Federal Habeas Action

         On July 27, 2016, Kinder initiated this federal habeas proceeding pro se. (ECF No. 1.) The Court subsequently appointed counsel and granted leave to amend the petition. (ECF Nos. 15, 18.) Counsel filed a Second Amended Petition (ECF No. 39) (“Petition”) in October 2018, alleging four grounds for relief under the Sixth and Fourteenth Amendments of the United States Constitution:

1. Kinder's trial attorney ineffectively failed to contest the probable cause for the /// search warrant of his home.
2. Kinder's attorney ineffectively failed to object when the court imposed lifetime supervision even though he did not meet the criteria for this requirement.
3. Kinder's attorney did not tell him one count of possession was the maximum the State could prove under Nevada law.
4. Kinder's attorney was ineffective for failing to correct faulty information in Kinder's Presentence Investigation Report (“PSI”).

         Respondents now move to dismiss the Petition as untimely, unexhausted, and/or procedurally defaulted.


         A. Timeliness

         1. Legal Standard

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year period of limitations for federal habeas petitions filed by state prisoners under 28 U.S.C. § 2254. The one-year limitation period begins to run from the latest of four possible triggering dates, with the most common being the date on which the petitioner's state court conviction became final (by either the conclusion of direct appellate review or the expiration of time for seeking such review). 28 U.S.C. § 2244(d)(1)(A).

         Kinder concedes that his petition was filed after the expiration of the one-year statutory period. He argues, however, that he is entitled to equitable tolling to excuse his untimely filing based on extraordinary circumstances.

         Equitable tolling is appropriate only if a 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) (quotation omitted). 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).

         The Ninth Circuit has “adopted the ‘stop clock' approach to analyzing claims for equitable tolling. “[T]he statute-of-limitations clock stops running when extraordinary circumstances first arise, but the clock resumes running once the extraordinary circumstances have ended or when the petitioner ceases to exercise reasonable diligence, whichever occurs earlier.” Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014)).

         Kinder asserts he is entitled to equitable tolling based on the misconduct and/or abandonment by his trial/appellate counsel. “Equitable tolling may be warranted in instances of unprofessional attorney behavior; however, the AEDPA deadline will not be tolled for a garden variety claim of excusable attorney neglect or mistake.” Doe v. Busby, 661 F.3d 1001, 1011-12 (9th Cir. 2011) (citing Spitsyn, 345 F.3d at 800-02); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (“[T]he principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.”). The attorney misconduct must be “a sufficiently egregious misdeed like malfeasance or failing to fulfill a basic duty of client representation” to warrant equitable tolling. Doe, 661 F.3d at 1012 (citing Spitsyn, 345 F.3d at 801). “Failure to inform a client that his case has been decided, particularly where that decision implicates the client's ability to bring further proceedings and the attorney has committed himself to informing his client of such a development, constitutes attorney abandonment” that warrants equitable tolling. Gibbs, 767 F.3d at 886; see also Maples v. Thomas, 565 U.S. 266, 283 (2012). Further, the complete lack of a case file might, under some circumstances, justify equitable tolling if “the hardship caused by lack of access to his materials was an extraordinary circumstance that caused” the untimely filing of his federal petition. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013 (9th Cir. 2009); see also Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002).

         2. Analysis

         Considering the parties' arguments and the evidence submitted, the court finds that the statute of limitations should be equitably tolled through the filing of Kinder's pro se petition based on Kuehn's abandonment.

         While his direct appeal was pending, on May 30, 2013, Kinder alleged he received a letter from Kuehn stating that the Nevada Supreme Court ordered a full briefing and the appeal could take anywhere from two months to two years for decision. (ECF No. 42-26 at 4.) Kinder received another letter from Kuehn on January 13, 2014, informing him that oral argument was scheduled and Kuehn would keep Kinder informed of the status thereafter. (Id. at 4-5.) This was Kuehn's last communication with Kinder. (Id. at 5.) Kinder purportedly attempted to contact Kuehn by telephone several times, but the calls were never answered. (Id.)

         At some point thereafter, Kinder's family learned that attorney Nathan Gent “took over” Kuehn's cases. (Id.) Kinder represents that on April 23, 2015, he spoke to Gent who confirmed that he took over for Kuehn. (ECF No. 42-14 at 25.) Kinder inquired about the status of his appeal. (Id.) Gent told him the appeal had concluded but was not successful. (Id.) Gent declined to mail Kinder a copy of the decision and instructed Kinder to obtain the decision by other means. (Id.)

         On June 8, 2015, Kinder wrote to the Nevada Supreme Court asking when his direct appeal was decided, and why he had not been notified by the clerk of the court.[3] (Id. at 23.) In response, the Nevada Supreme Court sent Kinder a letter on June 11, 2015, stating that a decision was reached in his case, a remittitur had issued, and the time for filing a rehearing petition had expired. (Id. at 24.) Kinder's letter was ...

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