United States District Court, D. Nevada
RODNEY L. EMIL, Petitioner
WILLIAM GITTERE, et al., Respondents
before the court are respondents' motion to dismiss (ECF
No. 255) and petitioner's motion for leave to conduct
discovery (ECF No. 271) and motion for evidentiary hearing
(ECF No. 272). With their motion to dismiss, respondents
argue that several of petitioner Emil's habeas claims are
untimely, procedurally defaulted, unexhausted, or not
cognizable in this proceeding. Emil asks for leave to conduct
discovery and an evidentiary hearing to support his
opposition to the motion to dismiss and the merits of certain
habeas claims. For reasons that follow, the court will grant
in part and deny in part the motion to dismiss and deny
petitioner's motions for discovery and an evidentiary
was convicted in 1988 of first degree murder with the use of
a deadly weapon, for the murder of his stepfather, Charles
Emil, and he was sentenced to death. See Emil v.
State, 784 P.2d 956 (Nev. 1989). The conviction and
sentence were affirmed on appeal. Id. In May 1990,
Emil filed a motion for a new trial that was denied by the
state district court and on appeal. ECF No. 191-2, p. 1-41.
In July 1992, Emil initiated state post-conviction
proceedings. Id., p. 43-61. Those proceedings lasted
until August 30, 2000, when the Nevada Supreme Court denied a
motion to rehear its order dismissing Emil's appeal. ECF
No. 1, p. 82-94.
federal habeas corpus action was initiated on December 13,
2000. ECF No. 1. Shortly after Emil filed an amended
petition, the action was stayed, upon a stipulation of the
parties, from May 4, 2006, to January 11, 2011, pending a
state-court habeas action. ECF Nos. 159/174. After the stay
had been lifted and Emil had filed a second amended petition
(ECF No. 181), the Federal Public Defender for the District
of Nevada (Nevada FPD) filed a motion to withdraw and was
discharged from their representation of Emil on July 12,
2012. ECF No. 206. The Federal Public Defender for the
Central District of California was then appointed to
represent Emil. Id.; see also ECF No. 207.
March 11, 2013, Emil filed a third amended habeas petition.
ECF No. 212. On June 24, 2013, respondents filed a motion to
dismiss. ECF No. 216. On September 11, 2013, Emil filed a
motion for stay, which was granted on November 15, 2013. ECF
stay was lifted on January 6, 2017. ECF No. 241. Emil filed
his fourth amended petition on March 7, 2017. On March 23,
2018, respondents filed the motion to dismiss that is before
the court for decision.
APPLICABILITY OF AEDPA
initial matter, Emil contends that the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) should not
apply to this case because this court abused its discretion
by dismissing his initial federal habeas petition, filed in
1991, rather than staying that proceeding and holding it in
abeyance while he exhausted claims in state court.
making this argument, Emil relies primarily on Fetterly
v. Paskett, 997 F.2d 1295 (9th Cir. 1993). In
Fetterly, a newly-appointed attorney discovered new,
unexhausted claims several months after a habeas petitioner
had filed a fully-exhausted petition in federal district
court and, accordingly, asked the district court to stay
federal habeas proceedings while he exhausted the new claims
in state court. See Fetterly, 997 F.2d at 1297-98.
The district court refused to grant the stay. See
id. On appeal, the Ninth Circuit concluded that the
district court's refusal constituted an abuse of
discretion, holding that, under the unique circumstances of
the case, the district court was not only permitted, but
required, to stay proceedings on the exhausted petition
pending exhaustion in state court. See id. at 1301.
Emil's arguments to the contrary, the circumstances
before this court when it denied Emil's request for a
stay of his 1991 habeas proceeding bear scant resemblance to
the circumstances before the federal district court when it
denied the stay in Fetterly. The Ninth Circuit
identified “two reasons it was an abuse of discretion
for the district court to deny Fetterly's request for a
stay.” See Id. First, the district court had
erred in its view that Fetterly's new claims did not
“raise an issue cognizable under habeas.”
Id. Second, the attorney who represented Fetterly in
filing his initial federal habeas petition also represented
him in the state trial court when the error giving rise to
the unexhausted claims may have been committed, which
“raise[d] the specter of ineffective assistance of
counsel.” Id. As such, the Ninth Circuit
“believe[d] the only appropriate course for the
district court was to allow Fetterly's new attorney to
advance claims missed by the attorney who overlooked
denying Emil's request for a stay in 1992, this court did
not, like the district court in Fetterly,
erroneously determine that the habeas claims Emil sought to
exhaust in state court were non-cognizable on federal habeas
review. ECF No. 268, p. 45-46. And, because the counsel who
represented Emil in his state court trial and direct appeal
were not involved in his federal habeas proceeding, this
court's denial of his stay in the 1991 case did not
implicate the same ineffective assistance of counsel (IAC)
concerns present in Fetterly.
addition, there is an important procedural distinction
between the two cases. After denying a stay, the district
court in Fetterly denied Fetterly's original
petition on the merits. Fetterly, 997 F.2d at 1298.
Fetterly timely appealed and, on appeal, raised as an issue
whether the district court had abused its discretion in
rejecting his motion for a stay. Id. Here, Emil did
not appeal or seek reconsideration of this court's
dismissal of his 1991 petition, but instead challenges it for
the first time 26 years after the fact.
also worth noting that the unfair impacts of the court's
denial of the stay in Fetterly were readily apparent
at the time of the district court's decision and served
as the basis for the Ninth Circuit finding an abuse of
discretion. By contrast, Emil claims the application of
AEDPA, enacted in 1996, as the inequity arising from this
court's denial of his stay in 1992. This court cannot be
said to have abused its discretion for not anticipating the
passage of AEDPA. Consequently, this court rejects Emil's
argument that AEDPA should not apply to this case.
argue that several of Emil's habeas claims are not
cognizable in a federal habeas proceeding. To present a
cognizable federal habeas corpus claim under § 2254, a
state prisoner must allege that he is in custody in
“violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a). A
district court must dismiss a claim if it “plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court....” Rule 4, Rules Governing Section 2254 Cases.
court notes that, for many claims, respondents' arguments
are more properly characterized as a motion for summary
judgment rather than an argument that Emil has not pled a
cognizable claim. As a general matter, courts have found
summary judgment motions appropriate in habeas corpus
proceedings. Blackledge v. Allison, 431 U.S. 63, 80,
97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir.2000) (“As a
general principle, Rule 56 of the Federal Rules of Civil
Procedure, relating to summary judgment, applies with equal
force in the context of habeas corpus cases.”). This
court prefers, however, to address such arguments when it
rules upon the merits rather than in the context of a motion
to dismiss. Thus, the analysis here is confined to arguments
that the claim, on its face, fails to state a claim for which
federal habeas relief is available.
argue that Emil's claim based on allegations of actual
innocence (Claim 4) is not cognizable in this federal habeas
proceeding. The United States Supreme Court has acknowledged
that whether a freestanding claim of actual innocence is
cognizable on federal habeas review is an “open
question.” District Attorney's Office for Third
Judicial Dist. v. Osborne, 557 U.S. 52, 71 (2009).
See, also, Herrera v. Collins, 506 U.S. 390, 417
(1993) (acknowledging the possibility that a freestanding
actual innocence claim would exist in the capital context).
Given this uncertainty, this court is not prepared, at this
point, to dispose of Claim 4 on cognizability grounds.
Claim 14, Emil alleges that lethal injection is cruel and
unusual punishment under all circumstances and that lethal
injection under Nevada's protocol is unconstitutional.
Respondents argue that the latter aspect of the claim is
meritless but concede that it is “factually and legally
supported by argument.” As to the former, respondents
argue that the claim has been foreclosed by Supreme Court
case law, specifically Baze v. Rees, 553 U.S. 35
(2008). This court agrees that, under Baze, a
general challenge to the constitutionality of lethal
injection as a means of conducting an execution is of
questionable merit. The court is not convinced, however, that
such a claim is not cognizable as a federal habeas claim
given that it could arguably be “deemed a challenge to
the sentence itself.” See Hill v. McDonough,
547 U.S. 573, 579-80 (2006) (discussing Nelson v.
Campbell, 541 U.S. 637 (2004)). Thus, the court declines
to dismiss Claim 14 for failure to state a cognizable habeas
Claim 19, Emil alleges that he was denied his right to
effective assistance of post-conviction counsel. This claim
is not a ground for relief in a habeas proceeding under 28
U.S.C. § 2254. See 28 U.S.C. § 2254(i);
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)
(“[T]he fundamental fairness mandated by the Due
Process Clause does not require that the State supply a
[post-conviction] lawyer.”). Thus, the claim shall be
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one-year filing period for § 2254 habeas
petitions in federal court. 28 U.S.C. § 2244(d)(1). The
one-year 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).
Id. A petitioner, like Emil, whose conviction became
final before the enactment of AEDPA had until April 24, 1997,
to file a timely federal habeas petition. See Patterson
v. Stewart, 251 F.3d 1243, 1246 (9th Cir.
2001). Statutory tolling of the one-year time limitation
occurs while a “properly filed” state
post-conviction proceeding or other collateral review is
pending. 28 U.S.C. § 2244(d)(2).
Supreme Court's decision in Mayle v. Felix, 545
U.S. 644 (2005), limits a habeas petitioner's ability to
have newly-added claims "relate back" to the filing
of an earlier petition and, therefore, be considered timely
under 28 U.S.C. § 2244(d). The Court held that an
amended claim in a habeas petition relates back for statute
of limitations purposes only if it shares a "common core
of operative facts" with claims contained in the
original petition. Mayle, 545 U.S. at 663-64. The
common core of operative facts must not be viewed at too high
a level of generality, and an “occurrence, ” for
the purposes of Fed.R.Civ.P. 15(c), will consist of each
separate set of facts that supports a ground for relief.
Id. at 661. The scope of Rule 15(c) must be read in
light of Habeas Rule 2(c), which “instructs petitioners
to ‘specify all [available] grounds for relief' and
to ‘state the facts supporting each ground.'”
Id. (alteration in original).
concede that Emil's initial petition was timely filed in
December 2000. They contend, however, that numerous claims in
his fourth amended petition do not relate back to the initial
petition and, therefore, must be dismissed as untimely.
Respondents identify claims that fit in this category as
1c, 1d (the report was not alleged in the 2000 petition to
constitute Brady material), 1di, 1g (second half),
2b (this claim substantially differs from 2000 claim 6), 2c,
2e, 4, 5 (all), 6 (except for the allegations relating to the
social security administration), 7C, 7D, 8, 9b (this claim
differs substantially from 2000 claim 6Bi), 10(1), 10(2),
11(1), 11(2), 11(3), 12(b), 13, 14, 15, 16, 17, 18a (this
claim differs substantially from 2000 claim 12(4) where the
claim was not premised on Brady and the report was not
alleged to be Brady material), 18b (this claim differs
substantially from 2000 claim 12(2) in that the current claim
is premised on Polk), 18i, 18j, 19, and 20.
255, p. 88.
response, Emil argues, among other things, that he is
entitled to equitable tolling until the filing of his first
amended petition in 2006. Equitable tolling is appropriate
only if the petitioner can show: (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing. Holland v. Florida, 560 U.S. 631, 649
points to his reliance on this court's scheduling orders,
his reliance on Ninth Circuit case law on the relation-back
doctrine, and the State's conduct during the relevant
proceedings as the extraordinary circumstances warranting
equitable tolling in his case. As support for his argument,
he cites to Williams v. Filson, 908 F.3d 546
(9th Cir. 2018).
Williams, the petitioner filed his initial petition
within the one-year statutory period under 28 U.S.C. §
2244(d) but filed his amended habeas petition raising new
claims over a year beyond the end of the period. Id.
at 557. While added claims that “relate back” to
the initial petition under Fed.R.Civ.P. 15(c) may be
considered timely, the Williams court opted not to
address relation-back because it concluded that petitioner
was entitled to equitable tolling for the period between the
statutory deadline (August 29, 1998) and the date he filed
his amended petition (September 17, 1999). Id. at
558. In particular, the court granted equitable tolling based
on petitioner's reasonable reliance on the unsettled
state of the law on relation back in the habeas context
during the relevant time period. Id. at 559-60.
court found petitioner's reliance was “eminently
reasonable” because (1) as of August 1998
petitioner's counsel “had no reason to suspect that
Rule 15(c) would pose an obstacle to consideration of newly
added claims in an amended petition” and (2) the
federal district court and the State also assumed any newly
added claims would relate back. Id. at 560-61. With
respect to the former, the court cited to the Ninth
Circuit's broad construction of the relation-back
standard that prevailed at the time. Id. at 560. As
for the district court, the court noted “the series of
scheduling orders” that permitted Williams additional
time to file his amended petition. Id. These orders
were entered in accordance with the “George Memo,
” which established standardized procedures for
adjudicating federal capital cases in Nevada. Id. at
556. The court also noted that “the State waited
eight years after receiving the amended petition
before moving to dismiss any of the claims on the ground that
they did not relate back to the original petition under Rule
15(c).” Id. at 561 (emphasis in the original).
The court summarized by stating that “it was not until
the Supreme Court decided Mayle that anyone involved
in this case suggested that the newly added claims might not
relate back and could therefore be deemed untimely.”
had a properly-filed state post-conviction proceeding pending
at the time of AEDPA's enactment, so he is entitled to
statutory tolling until those proceedings concluded on
September 15, 2000. See Patterson, 251 F.3d at 1247.
Thus, 89 days of the one-year statutory period had elapsed
when Emil filed his initial habeas petition on December 13,
2000. He filed his first amended petition on March 3, 2006,
253 days after the decision in Mayle on June 23,
circumstances of Emil's case are sufficiently analogous
to those in Williams for this court to conclude that
he is entitled to equitable tolling for the time period
between the filing of his initial petition up until the
issuance of the Mayle decision. Soon after the
Federal Public Defender (FPD) accepted appointment as
Emil's counsel, this court issued a scheduling order on
January 29, 2001, setting a status conference for April 9,
2001. ECF No. 13. After that conference, the court entered a
second scheduling order setting October 9, 2001, as the date
for the parties to complete discovery, and December 10, 2001,
as the deadline for Emil's amended habeas petition. ECF
the State having stipulated to an extension of time, Emil
filed a motion for leave to conduct discovery on August 24,
2001. ECF Nos. 20-27. After both parties sought and obtained
multiple extensions of time, the briefing on the discovery
motion was completed in December 2001. ECF Nos. 30-38. The
court granted the motion in March 2002. ECF No. 39.
Emil filed a status report in August 2002 describing
difficulties in obtaining discovery material (ECF No. 41),
the court referred discovery issues and scheduling to the
magistrate judge, who subsequently set October 4, 2002, as
deadline for motions to compel and suspended the court's
scheduling order. ECF No. 42-44. The following two years were
consumed with the litigation of discovery issues. ECF Nos.
46-124. On November 18, 2004, the court entered an order
terminating discovery and setting March 25, 2005, as the new
deadline for Emil's amended petition. ECF No. 124. Emil
subsequently sought and obtained four more extensions of
time, all unopposed, before filing an amended federal
petition on March 3, 2006. ECF Nos. 125-128, 130, 132-135.
the foregoing was consistent with the common procedure of
this court in effect at the time. As in Williams,
Emil, this court, and the State relied on the assumption that
any newly-added claims arising from the same trial and
conviction would automatically relate back to the initial
petition. That assumption was vindicated by the Ninth
Circuit's decision in Felix v. Mayle, 379 F.3d
812 (9th Cir. 2004). It was not until the Supreme
Court's issuance of Mayle that the parties to
this case and the court learned that only new claims that
shared a “common core of operative facts” with
existing claims would relate back to the initial petition as
contemplated in Fed.R.Civ.P. 15(c). See Mayle, 545
reasoning and holding in Williams compel this court
to conclude that Emil is entitled to equitable tolling from
the date he filed his initial petition (December 13, 2000)
until the date the Supreme Court issued Mayle (June
23, 2005). Respondents raise no specific argument against
such a conclusion. Instead, they contend that Emil should
have filed a “place holder” petition immediately
following the decision in Mayle. ECF No. 282, p. 11.
Under the Ninth Circuit's stop-clock rule, however, Emil
was “entitled to use the full one-year
statute-of-limitations period.” See Grant v.
Swarthout, 862 F.3d 914, 919 (9th Cir. 2017).
By showing an entitlement to tolling for any amount of time
during the limitations period, then that time is to be
subtracted from the total number of days that have passed
from the date on which the AEDPA limitations period began to
run. See Id. at 918. While it left for
“another day” the question whether a petitioner
with a timely petition under this scenario “may need to
prove that he was diligent after an extraordinary
circumstance has ended, ” the court in Grant
strongly suggested the answer is that he does not.
Id. at 924 n.9.
Emil entitled to equitable tolling from December 13, 2000,
until June 23, 2005, his amended petition was filed with 23
days of the statutory one-year period
remaining. Thus, all the claims in the 2006 amended
federal petition are timely. The question then becomes whether
the claims in the fourth amended petition that respondents
identify as untimely relate back to the 2006 amended federal
Claim-by-claim relation back analysis.
do not dispute that Claims 4, 8, 10 through 15, and 17 relate
back to the 2006 amended federal petition. ECF No. 282, p.
14. Emil concedes, however, that Claims 11B3, alleging juror
misconduct by prematurely deliberating in the guilt phase,
and 12B5, alleging IAC in the penalty phase for failing to
investigate a lingering doubt defense, were not raised in his
initial petition or in the 2006 amended federal petition. ECF
No. 273, p. 83, 86. Thus, except for Claims 11B3 and 12B5,
Claims 4, 8, 10 through 15, and 17 relate back to a
timely-filed petition and are timely.
1C, a claim that the State suppressed exculpatory evidence
regarding Alan Carmack and interfered with the defense's
opportunity to present Carmack as a witness, relates back to
Claim 4A of the 2006 amended federal petition. ECF No. 135-2,
1D and subclaim 1D1 allege that the State suppressed blood
spatter evidence and that counsel was ineffective by not
consulting an expert and requesting a continuance. These
claims relate back to Claim 19 of the 2006 amended federal
petition. ECF No. 135-5, p. 27-32.
1G, a claim that counsel was ineffective by not discovering
impeachment evidence for witnesses Woodall, Kenny, and Koba,
relates back to Claims 1B, 2B, and 3B of the 2006 amended
federal petition. ECF No. 135-2, p. 5, 7-8, 11.
2, a claim that counsel was ineffective in failing to
investigate, impeach, and refute the testimony of Frederick
Woodall, relates back to Claim 8 of the 2006 amended federal
petition. ECF No. 135-4, p. 6-16.
3, a claim that Emil's constitutional rights were
violated by the trial court's exclusion of Woodall's
polygraph results, relates back to Claim 9 of the 2006
amended federal petition. ECF No. 135-5, p. 1-3.
5, a claim alleging pervasive prosecutorial misconduct,
relates back to Claim 5 of the 2006 amended federal petition.
ECF No. 135-2, p. 15-18.
6, a claim that counsel was ineffective in failing to
challenge the aggravating circumstance of murder for
remuneration, relates back to Claim 7 of the 2006 ...