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McClain v. LeGrand

United States District Court, D. Nevada

September 30, 2019

JAMES DAVID McCLAIN, Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         This 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.)

         I. BACKGROUND

         Petitioner 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.)

         II. DISCUSSION

         With 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.)

         In 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.

         In the 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.

         (ECF No. 89 at 24 (citations omitted).)

         The 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, 2017) (unpub.).

         McClain 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.[1]

         McClain 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).

         It is 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 ...


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