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Emil v. Gittere

United States District Court, D. Nevada

September 27, 2019

RODNEY L. EMIL, Petitioner
WILLIAM GITTERE, et al., Respondents


         Pending 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 hearing.

         I. BACKGROUND

         Emil 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.

         This 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.

         On 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 Nos. 220/229.

         The 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.


         As an 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.

         In 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.

         Notwithstanding 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 them.” Id.

         In 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.

         In 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.

         It is 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.


         Respondents 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.

         The 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.

         Claim 4

         Respondents 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

         In 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.”[1] 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.

         Claim 19

         In 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 dismissed.


         The 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).

         The 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).

         Respondents 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 follows:

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.

         ECF No. 255, p. 88.

         1. Equitable tolling.

         In 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 (2010).

         Emil 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).

         In 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.

         The 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.” Id.

         Emil 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.[2] 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, 2005.

         The 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 No. 16.

         With 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.

         When 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.

         All of 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 U.S. 663-64.

         The 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.

         With 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.[3] Thus, all the claims in the 2006 amended federal petition are timely.[4] The question then becomes whether the claims in the fourth amended petition that respondents identify as untimely relate back to the 2006 amended federal petition.

         2. Claim-by-claim relation back analysis.

         Respondents 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.

         Claim 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, p. 12-14.

         Claim 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.

         Claim 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.

         Claim 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.

         Claim 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.

         Claim 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.

         Claim 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 ...

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