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McClain v. LeGrand

United States District Court, D. Nevada

December 13, 2019

ROBERT LeGRAND, et al., Respondents.



         This represented habeas matter by Petitioner James David McClain (“Petitioner or “McClain”) under 28 U.S.C. § 2254 comes before the Court on McClain's motion for an evidentiary hearing and a sua sponte exhaustion inquiry initiated by the Court. (ECF Nos. 90, 93.)

         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 sentences of life with eligibility for parole after 35 years on each. 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, pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). (See ECF Nos. 69, 84.)


         A. Exhaustion

         The Court previously held that McClain's claims were technically exhausted by procedural default on the ground that he relied exclusively on Martinez to overcome the default, which the federal courts follow but Nevada state courts do not. (See, e.g., ECF No. 93 at 1-2 (broadly summarizing the basis for the prior ruling and related procedural history).) In the federal reply, however, McClain relied additionally in the alternative on an attorney-abandonment basis for overcoming the procedural default pursuant to Maples v. Thomas, 565 U.S. 266 (2012). Given that Nevada state courts follow Maples in at least some circumstances, the Court directed McClain to show cause why the petition was not subject to dismissal, or other alternative action, given that his claims potentially were not technically exhausted because a procedural default potentially might be overcome in the state courts.

         The Court is not persuaded by McClain's contention that Nevada state courts apply Maples only in a narrow context where the alleged attorney abandonment caused the untimely filing of a state postconviction petition, as opposed to alleged abandonment occurring after the filing of a petition. (See ECF No. 94 at 2-6.)

         The Supreme Court of Nevada clearly has considered the potential availability of relief under Maples in situations where any alleged attorney abandonment would have occurred during the pendency of a state petition. See Guy v. State, No. 65062, 2017 WL 5484322, at *2 (Nev. Nov. 14, 2017) (unpub.); Guerrero v. State, No. 69678, 2017 WL 2628213, at *1 (Nev. June 15, 2017) (unpub.); Emil v. State, No. 65627, 2016 WL 1638750, at *1 n.1 (Nev. Apr. 22, 2016) (unpub.) (alternative holding); Bradford v. State, No. 61559, 2014 WL 5316509, at *1 (Nev. Oct. 16, 2014) (unpub.). While the decisions did not grant relief on the facts respectively presented in the cases, the decisions did not categorically rule out application of Maples in the post-filing situations presented as a matter of law under Nevada state law. Nor did the prefiling context cases that McClain relies upon in his argument contain language addressing other contexts, much less rule out application of Maples in other contexts.

         In this regard, McClain maintains that the Nevada state courts would apply Maples in only the prefiling context rather than also the post-filing context because attorney abandonment would constitute an impediment external to the defense only in the former context rather than the latter. (Id. at 3-6.) However, in Maples itself, the Supreme Court referred to attorney abandonment-without restriction as to context-as constituting an impediment external to the defense because the alleged abandonment severed the attorney-client agency relationship. 565 U.S. at 281; see also Harris v. State, 407 P.3d 348, 352 (Nev. Ct. App. 2017). Nothing in the Nevada state appellate courts' reference to attorney abandonment as an impediment external to the defense in one context necessarily distinguishes that context from another where an attorney also has abandoned a petitioner. Again, the Nevada state court decisions include no language categorically precluding the application of Maples in Nevada in post-filing contexts. McClain's attempt to infer such a categorical statement from references to an impediment external to the defense is unpersuasive. The reference to an impediment external to the defense does not necessarily distinguish one situation where the attorney-client agency relationship has been severed from another.[1]

         Following full review, the Court is persuaded, however, that McClain in particular would not likely have a potentially viable Maples argument in the Nevada state courts.

         In Emil, the Supreme Court of Nevada rejected the petitioner's reliance upon Maples because, inter alia, the petitioner sought state court relief more than one year after Maples had been decided. 2016 WL 1638750, at *1 n.1. To seek state court relief, McClain likely would have to overcome not only Nevada's successive petition rules but also its timeliness rules. A petitioner seeking to rely upon Maples while seeking to pursue a second Nevada state petition thus potentially would face an objection that he had waited more than a year after Maples to rely upon its attorney-abandonment rule. A petitioner in that circumstance with mental health issues conceivably might rely upon his mental health condition to excuse any delay beyond a year from the Maples decision. However, Nevada state courts do categorically rule out reliance upon a mental health issue as a basis for establishing cause to overcome a procedural default. See, e.g., Phillips v. State, No. 76371-COA, 2019 WL 5618314, at *1 (Nev. Ct. App. Oct. 30, 2019).[2] It thus would appear that McClain would be precluded from potentially relying successfully on Maples if he were to return to state court to seek to exhaust his claims.

         The Court therefore concludes following its sua sponte inquiry that McClain's alternative reliance on Maples in the reply does not undercut the Court's prior holding that his claims are technically exhausted by procedural default. The Court emphasizes that the exhaustion ruling in the present case with respect to Maples is based upon the current Nevada state jurisprudence regarding the application of Maples and the particular facts and issues in this case. The Court will not necessarily extend the ruling, which is not binding in any event in other cases in the District, to other cases, depending on the then Nevada jurisprudence and the facts and issues in the particular case.[3]

         B. Evidentiary Hearing Request

         The Court is persuaded that an evidentiary hearing is warranted both on McClain's effort to overcome the procedural default of his claims and potentially on the merits.

         1. § 2254(e)(2) Does Not Bar an Evidentiary Hearing

         Recent Ninth Circuit authority requires the rejection of Respondents' argument that an evidentiary hearing is precluded by 28 U.S.C. § 2254(e)(2).[4]

         At the outset, a petitioner seeking to show cause under Martinez based upon inadequate assistance of postconviction counsel is not asserting a “claim” for purposes of § 2254(e)(2). See, e.g., Rodney v. Filson, 916 F.3d 1254, 1261 (9th Cir. 2019). The provision thus does not bar an evidentiary hearing on the Martinez issue itself. The same conclusion logically would appear to apply to the Maples issue as well.

         Moreover, if McClain overcomes the procedural default under Martinez (and/or Maples) at the hearing, then § 2254(e)(2) will not bar consideration of the evidence adduced at the hearing also on the underlying and intertwined merits claims of ineffective assistance of trial counsel.

         The Ninth Circuit recently held in a published opinion that § 2254(e)(2) did not bar consideration of evidence received at a Martinez hearing also on the merits if the petitioner overcame the procedural default under Martinez. See Jones v. Shinn, __ F.3d, __ No. 18-99006, 2019 WL 6442931, at *6-*8 (9th Cir. Nov. 29, 2019).

         This conclusion is fully consonant with Supreme Court precedent regarding § 2254(e)(2), with respect to both Martinez and Maples as a potential basis for overcoming a procedural default.

         In Williams v. Taylor, 529 U.S. 420, 432-34 (2000), the Supreme Court held that a lack of diligence or the presence of some greater fault attributable to the petitioner is a threshold requirement to the application of § 2254(e)(2). Without a predicate of lack of diligence or the presence of greater fault attributable to the petitioner, the remaining requirements of § 2254(e)(2) are inapplicable. See Id. at 430-32, 437.

         Williams further held that Congress codified this threshold diligence standard in 1996 in § 2254(e)(2) from the Court's caselaw establishing the criteria for when an evidentiary hearing was available.[5] Id. at 434. That caselaw in turn had borrowed the diligence standard from the Court's procedural-default-doctrine caselaw to determine also the availability of a federal evidentiary hearing. See Id. at 432-35. Under that borrowed procedural-default-doctrine caselaw, the fault of a petitioner's counsel was attributable to the petitioner in determining whether the petitioner had been diligent in circumstances where the petitioner had not been denied effective assistance of constitutionally required counsel. See Id. at 432-33; Keeney v. Tamayo-Reyes, 504 U.S. 1, 8-9 (1992); Coleman v. Thompson, 501 U.S. 722, 752-53 (1991).

         Martinez, however, qualified the underlying procedural-default-doctrine caselaw that had been relied upon in the caselaw concerning the availability of a federal evidentiary hearing. Martinez essentially declined to attribute an attorney's fault to a petitioner where he was denied effective assistance of counsel under the otherwise constitutional Strickland standard[6] when counsel failed to raise a substantial claim of ineffective assistance of trial counsel in an initial-review collateral proceeding that presented the first meaningful opportunity to raise the claim. See 566 U.S. at 14.

         Maples similarly qualified prior procedural default caselaw by holding that attorney fault was not attributed to the petitioner where attorney abandonment had severed the attorney-client agency relationship. See 565 U.S. at 280-83.

         Nothing in Williams necessitates a conclusion that Congress, in codifying a diligence standard derived, ultimately, from Supreme Court procedural default caselaw, codified that jurisprudential standard only as it existed in 1996. Rather, in codifying a jurisprudential diligence requirement, it is not at all implausible that Congress intended to incorporate that diligence requirement as it was construed and applied in subsequent caselaw pertaining to the diligence requirement. Cf. Jam v. Int'l Fin. Corp., 139 S.Ct. 759, 769-70 (2019) (1945 statute's reference to “same immunity from suit ... as is enjoyed by foreign governments” encompassed subsequent changes to the law of foreign sovereign immunity, including the FSIA); West v. Gibson, 527 U.S. 212, 217-19 (1999) (Title VII's reference to “appropriate remedies” included remedies appropriate under subsequent changes in the law).

         Such a construction of § 2254(e)(2) is a sensible one. As is recognized in the plurality decision in Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc), “it makes little sense” to allow a petitioner to overcome a procedural default under Martinez only to then bar consideration of the same evidence on the merits of the claims that were rescued from procedural default by Martinez. See Id. at 1247; accord McLaughlin v. Laxalt, 665 Fed.Appx. 590, 593 (9th Cir. 2016); Hill v. Glebe, 654 Fed.Appx. 294, 295 (9th Cir. June 16, 2016). To construe § 2254(e)(2) otherwise would make Martinez, as well as Maples, in Justice Jackson's words, “only a promise to the ear to be broken to the hope.” Edwards v. California, 314 U.S. 160, 184 (1941) (Jackson, J., concurring).

         With regard to the hearing evidence also being considered on the merits claims, the Court therefore does not as a threshold matter (i.e., before the evidentiary hearing also initially on the Martinez and Maples issues) necessarily attribute the fault of McClain's state postconviction counsel-who did absolutely nothing on the record during the representation-to McClain in failing to develop the factual basis for his claims in the state courts. The Court further finds, again as a threshold matter before an evidentiary hearing also on the Martinez and Maples issues, that there is a credible argument that McClain himself exercised reasonable diligence, particularly given his borderline intellectual disability, in seeking to develop the factual basis for his claims, including, inter alia, requesting a mental health evaluation at sentencing.

         The Court therefore holds that (a) § 2254(e)(2) does not bar an evidentiary hearing as to the Martinez issue and the Maples issue, and (b) the statute does not anticipatorily bar consideration of the hearing evidence also on the intertwined merits issues on the underlying claims of ineffective assistance of trial counsel in the event that McClain overcomes the procedural default under Martinez and/or Maples.

         2. McClain's Merits Claims Otherwise Warrant an ...

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