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Perez v. State

United States District Court, D. Nevada

September 30, 2019

GLADYS PEREZ, Petitioner,
v.
STATE OF NEVADA, Respondent.

          ORDER

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by petitioner Gladys Perez, a Nevada prisoner who is represented by counsel.

         Respondent State of Nevada mas moved to dismiss. ECF No. 34. Perez has filed a Motion to Substitute Respondents (ECF No. 40), a Motion for Discovery (ECF No. 90), a Motion for Leave to File Excess Pages (ECF No. 110), and a Motion for Evidentiary Hearing (ECF No. 111). I deny the motion to dismiss and motion for evidentiary hearing, I grant the motion to substitute respondents and motion for leave to file excess pages, and I grant in part the motion for discovery.

         I. BACKGROUND

         On January 11, 2006, Perez's boyfriend, Marc Anthony Colon, attacked her three-year-old daughter, C.F., rendering the child unresponsive. ECF Nos. 27 at 6; 82-21 at 27-28.[1] Instead of taking C.F. to the hospital, Colon and Perez drove to an apartment complex and put C.F.'s body in a dumpster. ECF No. 27 at 6. The next morning, Colon, his two daughters, Perez, and her oldest daughter left Las Vegas. Id. Over the next six weeks, Colon, Perez, and the girls were on the run, traveling to Oregon, Minnesota, and Colorado. Id. at 7-8. In late February 2007, Perez and her oldest daughter returned to California, where she was arrested. Id. at 8.

         A. State Court Procedural History

         Perez challenges the conviction and sentence imposed by the Eighth Judicial District Court for Clark County, Nevada (“state court”). She was initially charged with first degree murder by child abuse, second degree murder by child neglect, and child neglect resulting in substantial bodily harm. ECF No. 41-3. Following a 22-day trial in September and October 2008, a jury found Perez guilty of child neglect resulting in substantial bodily harm, child abuse resulting in substantial bodily harm, and first degree murder. ECF No. 78-6. The state court entered a judgment of conviction on January 9, 2009, sentencing Perez on the child abuse counts to concurrent sentences of 60-240 months and on the murder count to a consecutive sentence of life with the possibility of parole after a minimum of 20 years. ECF No. 81-3.

         Perez filed a direct appeal. ECF No. 81-5. In September 2011, the Supreme Court of Nevada affirmed the convictions. ECF No. 82-21. Perez moved for rehearing and en banc reconsideration (ECF Nos. 82-22, 82-24), but the requests were denied (ECF Nos. 82-23, 82-25). A remittitur issued in March 2012. ECF No. 82-26.

         On August 22, 2012, Perez filed a pro se state petition for writ of habeas corpus (“state petition”) seeking post-conviction relief. ECF No. 83-6. The state court appointed post-conviction counsel. ECF No. 83-13. In July 2013, Perez filed a counseled supplement. ECF No. 83-22. The state court held an evidentiary hearing, and on January 14, 2014 denied the state petition. ECF Nos. 83-26, 83-27. Perez did not appeal the denial of post-conviction relief.

         B. Federal Habeas Proceedings

         On approximately December 8, 2014, Perez mailed or handed to a prison official for the purpose of mailing, the pro se federal petition for writ of habeas corpus initiating this case. ECF Nos. 1, 9. This initial petition named the State of Nevada as the sole respondent. Perez filed a motion for appointment of counsel (ECF No. 3), which I denied without prejudice (ECF No. 5). I ordered Perez to submit points and authorities, together with any available evidence, to demonstrate that her claims were exhausted in the state courts. Id. Perez responded. ECF No. 7. I subsequently issued an order to show cause why this case should not be dismissed as time barred. ECF No. 8. After Perez responded (ECF No. 9), I sua sponte reconsidered my prior denial of Perez's motion for appointment of counsel and decided that appointing counsel was in the interests of justice. ECF No. 10. Thus, in December 2016, the Federal Public Defender's Office was appointed to represent Perez. ECF No. 13. After receiving multiple extensions of time, Perez filed a counseled Amended Petition (ECF No. 27) in June 2018.

         In late January 2019, the State moved to dismiss the amended petition for lack of personal jurisdiction, untimeliness, and failure to exhaust claims. Three days later, Perez filed her motion to substitute respondents. On the day her response to the motion to dismiss was due, Perez filed a motion to extend the opposition deadline along with a motion for discovery. ECF No. 93. She asked that her opposition deadline be set for 60 days after the completion of discovery, if I ordered any. If I denied discovery, she asked for an additional 60 days to file her opposition. I granted her request in part, giving Perez “30 days from either a court order denying her motion for discovery or from the close of any discovery granted to file an opposition to the respondents' motion to dismiss.” ECF No. 94.

         After the discovery motion was fully briefed, I conducted a preliminary review of the motion and associated briefing and concluded that a decision could not be reached until the motion to dismiss was also fully briefed. ECF No. 105. Thus, Perez was given 30 days to file a response and the State was given time to file a reply. Perez filed an 85-page opposition, the motion for evidentiary hearing, and the motion to exceed the page limit imposed by the Local Rules. The State submitted a reply in support of its motion to dismiss and opposition to the motion for evidentiary hearing in late September 2019.

         C. The Parties' Positions Regarding Timeliness

         In the motion to dismiss, the State argues, among other things, that Perez's original federal petition was untimely. The parties agree that the one-year limitation period under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) expired on December 1, 2014, and Perez mailed her petition on or about December 8. ECF Nos. 34 at 7-8; 108 at 46-47. Perez argues she can overcome any procedural or timeliness bars because (i) new evidence undermines the validity of her conviction and demonstrates that she is actually innocent, and (ii) she is entitled to statutory and equitable tolling.

         First, Perez claims actual innocence based on new evidence, pursuant to Schlup v. Delo, 513 U.S. 298 (1995). She argues she was “a severely abused woman” and the state's theory that Perez failed to protect C.F. and “chose” her boyfriend over her daughter “simply wasn't true, ” and even if true did not amount to first-degree murder, second degree murder, or child neglect. ECF No. 108 at 10-11, 25. Perez contends that an unqualified defense expert, John A. Paglini, Ph.D., testified at trial to an outdated theory of Battered Women's Syndrome, rather than the accepted understanding of intimate partner violence. As new evidence, Perez now presents the expert opinion of Mindy B. Mechanic, Ph.D. (ECF Nos. 28-13, 28-14) and testimony of her family members, a friend, and a prisoner who was previously incarcerated with Colon.[2] Dr. Mechanic opines that Perez did not have a qualified, competent psychologist evaluate her and testify on her behalf at trial, and such testimony would have provided context for understanding her behavior, both her actions and failures to act. “Coercive control, ” if properly understood and articulated by a qualified expert, could have explained Perez's behavior that appeared complicit in illegal acts but was the product of coercive control by her abuser, Colon. Additionally, Perez claims that witnesses can provide detailed information proving Colon's coercive control over Perez. If the jury had heard testimony from a qualified expert like Dr. Mechanic, coupled with the new witness testimony, Perez asserts that no reasonable juror would have convicted her.

         Second, she argues that equitable tolling is appropriate because Brett Whipple, her post-conviction counsel, was ineffective and abandoned her on appeal. Perez claims she only saw Whipple once during the time he represented her and rarely spoke to him on the phone. ECF No. 109-2 at 2, ¶ 6. Whipple failed to file a reply in support of her state petition and did not attend the December 2013 evidentiary hearing, sending an associate instead.[3] Perez contends that her inability to reach Whipple and his failure to file a reply or appear at a key hearing indicate that he was overextended, particularly because state court records list Whipple as counsel of record in at least 200 cases during the two years he represented her. Perez was purportedly told that Whipple would send her a letter explaining her options moving forward, but he never did. Id. at ¶ 7. Perez maintains she told Whipple on several occasions that she wanted to continue to fight by appeal and all means necessary, and she believed that he actively pursued a state habeas appeal and/or federal habeas proceedings. ECF No. 83-36 at 2. On a date unknown, she alleges Whipple told her during a phone call that he “wasn't sure” if she was serious about pursuing an appeal or federal habeas relief. Id. Perez therefore moved the state court to withdraw Whipple, noting that she had requested copies of records of the trial, post-conviction proceeding, and state habeas appeal from Whipple but had received nothing. Id. at 2- 3. These actions and inaction, Perez argues, show Whipple's ineffectiveness and abandonment.

         Perez further asserts that both statutory and equitable tolling are warranted because the prison prevented her from timely filing a petition. She claims the library at the Florence McClure Women's Correctional Center (“FMWCC”) experienced turnover in 2013 and 2014. There was no designated librarian from sometime between May and August 2013 until December 2014 when a new librarian started. Because there was no librarian, Perez asserts that inmates could use the library only when prison staff were available to supervise. The library's hours were therefore limited and unpredictable. Inmates were required to make an appointment by submitting a kite-a difficult process that may take weeks-and they were allotted only one-hour of library time.

         Perez claims she encountered great difficulty, delay, and confusion in 2014 regarding filing her federal petition pro se through the law library. She first requested federal habeas forms on September 14, 2014, intending to file a “Notice of Appeal with the U.S. District Court - District of Nevada.” ECF Nos. 9 at 2, 91-2. The library “processed” the notice of appeal by sending it to the state court on September 25, 2014. ECF No. 36-7. At the end of October, she claims she received additional forms to “prepare 2254 habeas packet.” ECF No. 9 at 2. In mid-November, she requested a financial certificate for her habeas paperwork, and received a response dated November 20, 2014, stating “done.” ECF No. 91-6. She submitted a second request for a financial certificate on November 23, and received a response dated December 1, stating that her request was submitted to inmate banking. ECF No. 91-7. Perez submitted a “time sensitive” kite for a library appointment on December 1: “Need an appointment as soon as possible - legal copies and mail out to U.S. District Court, needs to be brass-slipped no later than Friday, December 5, 2014, please.” ECF No. 91-8. She received an appointment for December 8. Id.

         During her December 8 appointment, Perez asserts that prison staff intimidated and discouraged her from filing her federal petition. ECF No. 109-2. She alleges that Assistant Warden of Programs Tanya Hill and her administrative assistant were in an office adjacent to the library while Perez and inmate law clerk Rosemary Vandecar worked on the federal petition. Id. at 4, ¶ 24. Hill allegedly called Perez into the office and began asking her

a lot of questions, including some version of: “What are you doing here? Who told you about the appeals process? Why do you think the courts will do anything for you? Do you understand that when you file paperwork, you're basically suing the Department of Corrections? Do you understand that child crimes are really closely looked at?”

Id. The questions shocked Perez and made her cry in front of Hill and her assistant. Id. at ¶¶ 24- 25. Perez represents that she “felt intimidated and began to worry about what would happen” to her if she filed the petition. Id. at ¶ 26. When she left the office and returned to the library, Perez told Vandecar what happened and Vandecar encouraged Perez to file the petition anyway. Id. at ¶ 27. Perez mailed the petition the same day. Id.

         Although Hill's attempt to intimidate Perez failed, she asserts she is still entitled to equitable tolling. ECF No. 108 at 60-61. Perez contends that Hill directly controlled Perez's access to the library, and thus her ability to prepare her petition. She argues that the prison prevented her from timely filing the federal petition because the law library was rarely open, had unpredictable hours, and inadequate resources. In particular, because “the business office lost [Perez's] request for a financial certificate, making her redo the request causing a delay, ” she avers that equitable tolling is warranted: “Had the business office provided [Perez] with her financial certificate on November 20, 2014, as they originally said, her petition would have been timely.” Id. at 61. Furthermore, Perez asserts the same facts authorize statutory tolling under 28 U.S.C. § 2244(d)(1)(B) (allowing for tolling or delayed accrual of AEDPA's one-year limitation period when the state creates an impediment to filing a habeas federal petition “in violation of the Constitution or laws of the United States” until such impediment is removed, if the impediment actually prevented the petitioner from filing).

         In the reply, the State argues Perez has failed to show she is actually innocent or that equitable and statutory tolling are appropriate. With regard to actual innocence, the State points out that the jury heard evidence of Colon's abuse of Perez, expert testimony explaining intimate partner violence and coercive control, and the defense theory that the abuse could have contributed to Perez's involvement in C.F.'s death, yet the jury still convicted her. Although Dr. Paglini did not use the term “PTSD” in his testimony (ECF Nos. 76-2, 76-3, 76-4), the State asserts the concept and content of his testimony was virtually identical to Dr. Mechanic's assessment. Defense witnesses also testified that Perez's behaviors were noticeably different before and after Colon. ECF No. 72-1. Because Dr. Mechanic's report and the proffered witness testimony are consistent with the evidence at trial, and therefore do not amount to new evidence, the State contends such evidence does not render the verdict unreliable or demonstrate that no reasonable juror could have found Perez guilty. Thus, she cannot meet Schlup's demanding standard for actual innocence.

         The State further argues that Perez is not entitled to equitable and statutory tolling. First, it contends that Whipple did not provide ineffective assistance or abandon her on appeal. Sending coverage counsel to hearings and not filing a reply, the State argues, amount to run-of-the-mill mistakes-not attorney abandonment. Perez does not allege she explicitly asked Whipple to appeal and he ignored her requests; thus, the State asserts she fails to demonstrate that Whipple actually abandoned her for an appeal. The State also argues that Perez failed to provide evidentiary support for her allegation that Whipple's caseload was excessive. Perez claims that Whipple was counsel of record in over 200 cases in state court while he represented her, but the State contends that many cases could have been stayed, inactive, lacking pending deadlines, or were non-complex and did not require many attorney hours. Further, the State asserts that Perez failed to provide legal authority showing that a defense attorney's excessive workload can meet the egregious conduct standard for attorney abandonment.

         Second, the State claims Perez has not shown that the prison prevented her from timely filing her federal habeas petition. Although Perez alleges that limited access to the library and wait times for library appointments and her financial certificate impeded her efforts to draft and file a federal petition, the State asserts her allegations and NDOC records demonstrate that the prison did not prevent her access to the courts. NDOC records show that Perez submitted eight total kites for the library during 2013 and 2014, but most of those requests related to her divorce proceeding and legal name change and she did not request library appointments for a federal petition until September 2014. ECF No. 116-1 at 4-5, 12-14. The State points out that prison staff responded to Perez's kites and made her library appointments when requested, gave her requested forms, fulfilled her request for a financial certificate, [4] and mailed her legal documents. Id. at 4-5, 12-21. Even assuming that the alleged incident between Hill and Perez happened, the incident occurred on December 8, 2014-one week after her December 1st AEDPA deadline- and Perez was still able to mail her petition. Thus, she cannot demonstrate that the prison made it impossible for her to access the courts.

         II. ANALYSIS

         I will first address Perez's collateral motions given their impact on ...


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