United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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).
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.
charges against petitioner arose from an accident that
occurred in the early morning hours of July 7,
2008. (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).
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)).
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).
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).
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).
counsel thereafter filed the instant, operative amended
petition, which respondents now move to dismiss in part.
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).
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.
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).
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.
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 ...