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Murray v. Williams

United States District Court, D. Nevada

September 6, 2019

STEVEN NELSON MURRAY, Petitioner,
v.
BRIAN WILLIAMS, SR., et al., Respondents.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         This counseled habeas petition pursuant to 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss the amended petition, in part, as untimely, unexhausted, procedurally defaulted, and precluded (ECF No. 64). Petitioner has opposed (ECF No. 67), and respondents have replied (ECF No. 70). In addition, petitioner has filed a motion for leave to file supplemental authority, which has not been opposed (ECF No. 71).

         I. Background

         Petitioner in this action challenges his 2009 state court conviction, pursuant to jury trial, of one count of driving while under the influence causing death or substantial bodily harm and one count of vehicular homicide. (ECF No. 60; Ex. 39).[1]

         The charges against petitioner arose from an accident that occurred in the early morning hours of July 7, 2008.[2] (ECF No. 60 at 2). Petitioner was driving to work when he crashed his car into a bus stop, killing one of the women waiting there and severely injuring the other. (Id.) After the crash, petitioner climbed out of his car, walked to the curb and sat down. (Id. at 2-3). Police arrived a few minutes later, at 5:39 a.m. (Id. at 3). Petitioner admitted he had taken prescribed doses of Valium and Percocet the night before, and at 6:40 a.m. the police began to conduct three field sobriety tests on petitioner, all of which he failed. (Id.) The police decided to transport petitioner to jail, but on the way there he complained of back pain, so they took him to the hospital instead. (Id.) There, petitioner's blood was drawn and tested positive for the active ingredients in Valium and Percocet. (Id.) Petitioner was arrested at 12:45 p.m. and charged with DUI causing substantial bodily injury and the alternative charges of DUI causing death and vehicular homicide. (Resp. Ex. 4).

         Before trial, the defense moved to suppress all evidence obtained as a result of the allegedly prolonged detention, including the results of the blood draw. (Resp. Ex. 6). At a hearing on the motion, defense counsel initially sought an evidentiary hearing to establish when the petitioner was detained. However, after the court concluded that there was probable cause to arrest petitioner based on the fact of the crash alone, counsel conceded that there would be no point to an evidentiary hearing. (Resp. Ex. 9 (Tr. 1-13, 16-18, 21-23)).

         The defense also moved to sever the vehicular homicide charge, as proving that charge would have involved presentation of evidence of petitioner's prior DUIs. (Resp. Ex. 11). Instead of severing the charge, the court accepted the parties' stipulation that petitioner would not be tried on the vehicular homicide charge; rather, if he were convicted of DUI causing death, the prior DUIs would be treated as a sentencing enhancement to be decided by the court, and if found by the court, petitioner would be adjudicated guilty of vehicular homicide instead of DUI causing death. (Resp. Ex. 25).

         Trial commenced on March 23, 2009. (Resp. Ex. 27). Pursuant to the stipulation, the jury was asked to consider only the two DUI counts, and the jury found petitioner guilty of both. (Resp. Ex. 35). Petitioner was sentenced and judgment of conviction was entered. (Resp. Exs. 38 & 39). On appeal, the Nevada Supreme Court affirmed. (Resp. Exs. 40, 41 & 47). Petitioner then filed a state postconviction petition for habeas corpus relief, which the trial court denied on the merits. (Resp. Exs. 49 & 58). The Nevada Supreme Court affirmed. (Resp. Ex. 62).

         Petitioner thereafter initiated the instant action by filing a pro se petition for federal habeas corpus relief. (ECF No. 1). The Court found several of petitioner's claims unexhausted but granted petitioner's motion to stay and abey while he exhausted those claims in state court. (ECF Nos. 23 & 38). After returning to state court, petitioner filed a motion to reopen proceedings, along with a motion for appointment of counsel, both of which the Court granted. (ECF Nos. 41, 43 & 47). The Court also granted petitioner's motion to vacate its order partially dismissing the petition and motion for leave to file an amended petition. (ECF No. 57).

         Appointed counsel thereafter filed the instant, operative amended petition, which respondents now move to dismiss in part.

         II. Timeliness

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one year statute of limitations on the filing of federal habeas corpus petitions. The statute imposing a period of limitations provides:

(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).

         A claim in an amended petition that is filed after the expiration of the one year 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 Mayle, 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 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.

         A. Ground One

         Ground One asserts that trial counsel entered into a stipulation that allowed the court to convict petitioner of a substantive offense, in violation of his Fifth, Sixth and Fourteenth Amendment rights. (ECF No. 60 at 10-13). Petitioner asserts that the stipulated procedure resulted in structural error, and that the stipulation violated petitioner's “Sixth Amendment autonomy right to control his defense.” (Id. at 11).

         Respondents interpret the latter allegation as a claim that petitioner's autonomy rights were violated pursuant to McCoy v. Louisiana, __U.S.__, 138 S.Ct. 1500 (2018), and they argue that to this extent Ground One is untimely. Ground One does not explicitly rely on McCoy. However, to the extent it does, it merely is a different legal theory based on the facts alleged in the pro se petition and therefore relates back. In the timely pro se petition, petitioner alleged that trial counsel was ineffective for entering into the stipulation “without [his] permission or knowledge, ” that the stipulation was invalid and resulted in the vehicular homicide count being a sentencing enhancement rather than a charge, and that the trial court erred in making Count 3 a sentencing enhancement. (ECF No. 6 at 4-7 & 44). These allegations are the same allegations underlying the claim in Ground One, even any McCoy claim, and therefore Ground One relates back to the pro se petition.

         B. Ground Two(B)

         In Ground Two(B), petitioner asserts that “[t]rial counsel failed to argue for suppression of the blood draw results on the grounds Mr. Murray didn't consent to the draw.” (ECF No. 60 at 14). Although Ground Two(B) was not part of the pro se petition, petitioner asserts that it relates back to his claims therein that counsel was ineffective for failing to obtain a second analysis of his blood and failing to object to the blood draw, taken four hours after the accident, as well as his assertion that such evidence should have been suppressed as an “unlawful search and seizure.” (ECF No. 6 at 19-20). Petitioner further argues that his petition incorporated by reference his direct appeal, in which he asserted that the results of the blood draw should ...


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