United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
McClain's pro se 28 U.S.C. § 2254 amended petition
is before the court on respondents' motion to dismiss
certain grounds (ECF No. 30).
Procedural History and Background
convicted McClain in January 2009 of first-degree murder,
battery constituting domestic violence with an intent to
kill, and battery constituting domestic violence with use of
a deadly weapon. Exh. 74. The parties entered into a stipulation
to waive the penalty hearing, have the state district court
impose a sentence of 20 years to life on the murder count,
and dismiss the other two counts. Exh. 76. Judgment of
conviction was entered on April 20, 2009. Exh. 84. The Nevada
Supreme Court affirmed McClain's conviction on December
27, 2011. Exh. 116.
filed a state postconviction habeas corpus petition in
September 2012. Exh. 122. The state district court conducted
an evidentiary hearing. Exhs. 147, 161. The court denied the
petition, and the Nevada Supreme Court affirmed. Exhs. 166,
182. Remittitur issued on March 13, 2017. Exh. 183.
March 12, 2017, McClain dispatched his federal habeas
petition for filing (ECF No. 1-1). He ultimately filed a
second-amended petition on June 22, 2018 (ECF No. 28).
now argue that some grounds in the second-amended petition do
not relate back to a timely-filed earlier petition, some
grounds are unexhausted, and some grounds fail to state
claims cognizable in federal habeas corpus (ECF No. 30).
McClain opposed (ECF No. 34), and respondents replied (ECF
No. 25). McClain filed a surreply (ECF No. 36). Respondents
moved to strike the surreply because McClain failed to obtain
leave of court as required under the local rules. Local Rule
7-2(g). Good cause appearing, respondents' motion to
strike is granted.
Legal Standards & Analysis
argue that four grounds in the amended petition do not relate
back to a timely-filed petition, and therefore, should be
dismissed as untimely (ECF No. 30, pp. 4-8). A new claim in
an amended petition that is filed after the expiration of the
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) one-year limitation period will be
timely only if the new claim relates back to a claim in a
timely-filed pleading under 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
a claim in the timely pleading. Mayle v. Felix, 545
U.S. 644 (2005). In Mayle, the United States Supreme
Court held that habeas claims in an amended petition do not
arise out of “the same conduct, transaction or
occurrence” as claims in the original petition merely
because the claims all challenge the same trial, conviction
or sentence. 545 U.S. at 655-64. Rather, under the
construction of the rule approved in Mayle, 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 & n.5;
Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th
Cir. 2013). The purpose of the relation back doctrine is to
ensure that the respondent “has been given all the
notice that statutes of limitations were intended to
provide.” Baldwin Cty. Welcome Ctr. v. Brown,
466 U.S. 147, 150 n.3 (1984).
relation back doctrine, in any context, “is to be
liberally applied.” Clipper Exxpress v. Rocky
Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1260
n.29 (9th Cir. 1982). This liberality is amplified here by
the less stringent pleading standards applied to pro
se habeas petitioners. See Corjasso v. Ayers,
278 F.3d 874, 878 (9th Cir. 2002).
the parties do not dispute that McClain timely appealed his
conviction and timely pursued state postconviction habeas
relief and do not dispute that the AEDPA statute of
limitations did not start to run until remittitur issued on
the affirmance of the denial of his state postconviction
petition on March 13, 2017. McClain had already dispatched
his original federal petition for mailing on March 12, 2017
(ECF No. 1-1). He filed his first-amended federal petition on
April 12, 2017 (ECF No. 5). The AEDPA one-year statute of
limitations expired on March 13, 2018, and McClain filed his
second-amended petition on June 22, 2018 (ECF No. 28).
Accordingly, the claims in the second-amended petition must
relate back to McClain's original or first-amended
federal petition in order to be deemed timely.
pro se original petition, McClain raised the
Ground I: The court committed error permitting several
instances of hearsay regarding the deceased in violation of
the Confrontation Clause of the Sixth Amendment to the
Ground II: The court committed error when it did not allow
the defense to introduce several statements by the deceased.
Ground III: Mr. McClain is entitled to a new trial because
the hearsay testimony of State's witnesses Dr. Zucker and
Dr. Hanson violated his Sixth and Fourteenth Amendment
Ground IV: The district court committed reversible error when
it did not allow Mr. McClain to introduce the victim's
propensities for violence and previous violence in violation
of his due process rights.
Ground V: The district court erred in giving jury instruction
nos. 27 and 28, in violation of McClain's Fifth and
Fourteenth Amendment rights.
[No Ground VI].
Ground VII: This purported ground does not set forth any
claims. It merely has the following heading: the district
court erred in giving jury instruction nos. 5, 17, 19, and 41
in violation of McClain's Fifth and Fourteenth Amendment
rights - with no elaboration whatsoever.
Ground VIII: Trial counsel was ineffective in violation of
McClain's Sixth and Fourteenth Amendment right to
effective assistance of counsel and due process of law when
counsel was unprepared for trial and failed ...