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 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.)
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.)
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.
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.)
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.
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.
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.
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). 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.
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.
Evidentiary Hearing Request
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.
§ 2254(e)(2) Does Not Bar an Evidentiary
Ninth Circuit authority requires the rejection of
Respondents' argument that an evidentiary hearing is
precluded by 28 U.S.C. § 2254(e)(2).
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
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
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,
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.
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.
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. 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).
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 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.
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
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).
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.,
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.
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.
McClain's Merits Claims Otherwise Warrant an ...