United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
represented habeas matter by Petitioner James David McClain
(“Petitioner or “McClain”) under 28 U.S.C.
§ 2254 is pending before the Court on, inter
alia, McClain's motion for an evidentiary hearing.
(ECF No. 90.)
James David McClain seeks to set aside his 2012 Nevada state
conviction, pursuant to a guilty plea, of two counts of
sexual assault of a child under 14 years of age. He is
sentenced to two consecutive life sentences of life with
eligibility for parole after 35 years on each such
consecutive sentence. Petitioner moves for an evidentiary
hearing so that he may, inter alia, seek to overcome
the procedural default of the claims of ineffective
assistance of trial counsel in his second amended petition.
(See ECF Nos. 69, 84.)
the exception of the rule in Martinez v. Ryan, 566
U.S. 1 (2012), the Nevada state courts recognize
substantially the same bases for overcoming state procedural
bars as the federal courts recognize to overcome a procedural
default. The Court therefore has clearly stated both in this
case and multiple prior cases that a claim will be
technically exhausted by procedural default in habeas cases
arising out of Nevada only if either: (a) the petitioner has
no potential grounds to overcome the procedural default, in
which case the claim then will be dismissed with prejudice as
procedurally defaulted; or (b) the petitioner relies
exclusively on grounds to overcome the procedural default
that the Nevada state courts do not recognize. (See,
e.g., ECF No. 82 at 10-12.)
prior filings directed to the exhaustion issue, McClain
relied solely on Martinez as a basis for overcoming
a procedural default of his claims. The Court therefore held
that his claims were technically exhausted by procedural
default, subject to his ability to seek to overcome the
procedural default under Martinez.
reply, however, McClain clearly has asserted an additional
basis for overcoming the procedural default, expressly in the
alternative to Martinez:
In the alternative, McClain requests this Court to find that
his abandonment by post-conviction counsel serve as cause for
overcoming the default. In Maples [v.
Thomas, 565 U.S. 266 (2012)], the Supreme Court held
that when an attorney abandons his client, “the
principal-agent relationship is severed and the
attorney's acts or omissions ‘cannot fairly be
attributed to the client.'” Therefore, the Court
held a petitioner “has shown ample cause...to excuse
the procedural default into which he was trapped when counsel
of record abandoned him without a word of warning.”
This is exactly what happened in McClain's case. McClain
never learned of post-conviction counsel's abandonment-he
just learned his counsel never filed anything on his behalf.
No. 89 at 24 (citations omitted).)
Nevada state courts recognize the rule in Maples as
a potential basis for overcoming a procedural default,
including in circumstances where the attorney allegedly took
no action on a pending matter. See, e.g., Harris
v. State, 407 P.3d 348, 352 (Nev. Ct. App. 2017);
Dow v. State, No. 70410-COA, 2019 WL 2454077, at *1
(Nev. Ct. App. June 11, 2019) (unpub.); Guy v.
State, 406 P.3d 471 (Table), 2017 WL 5484322, at *2
(Nev. Nov. 14, 2017) (unpub.); Guerrero v. State,
399 P.3d 329 (Table), 2017 WL 2628213, at *1 (Nev. June 15,
thus is seeking to overcome a procedural default in this
Court on a basis that also is recognized by the Nevada state
courts. He cannot do so and persuasively maintain at the same
time that his claims necessarily would be procedurally barred
if he returned to the state courts. His claims therefore are
neither technically exhausted nor necessarily procedurally
defaulted at this point.
therefore must either show cause why this action should not
be dismissed for lack of exhaustion and/or move for a stay.
See Mena v. Long, 813 F.3d 907 (9th Cir. 2016)
(availability of a stay on a wholly unexhausted petition).
therefore ordered that Petitioner has 30 days within which to
show cause why the petition, as amended, should not be
dismissed for lack of exhaustion and/or to file a motion for
a stay. If Petitioner does neither timely, the matter will be
dismissed for lack of exhaustion. And such dismissal will be
without prejudice ...