ROGER L. HUNT, District Judge.
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel. Before the Court is respondents' motion to dismiss the second amended petition (ECF No. 78).
On December 28, 1999, the State charged petitioner and his co-defendant, Michael Freed, by information with the following: Count 1, open murder with the use of a deadly weapon; Count 2, open murder with the use of a deadly weapon; Count 3, accessory to open murder (co-defendant only); Count 4, in the alternative to Count 1, principal to open murder with use of a deadly weapon; Count 5, in the alternative to Count 2, principle to open murder with use of a deadly weapon; Count 6, conspiracy to commit open murder; Count 7, robbery with the use of a deadly weapon; Count 8, in the alternative to Count 7, principal to robbery; and Count 9, conspiracy to violate the Uniform Controlled Substances Act. (Exhibit 13).
On August 16, 2000, the State filed an amended criminal information against petitioner only, charging him with the following: Count 1, open murder with the use of a deadly weapon; Count 2, open murder with the use of a deadly weapon; Count 3, in the alternative to Count 1, principal to open murder with the use of a deadly weapon; Count 4, in the alternative to Count 2, principal to open murder use of a deadly weapon; Count 5, conspiracy to commit open murder; Count 6, robbery with the use of a deadly weapon; Count 7, in the alternative to Count 6, principal to robbery; and Count 8, conspiracy to violate the Uniform Controlled Substances Act. (Exhibit 59).
Petitioner's jury trial commenced on September 5, 2000. (Exhibit 81). The jury found petitioner guilty of Counts 1, 2, 5, 6, and 8. (Exhibits 104, 106).
The penalty phase commenced on September 20, 2000. (Exhibit 110). For the death of Gerald Glade Spaeth, the jury imposed a sentence of life without the possibility of parole, with an equal and consecutive term for the use of a deadly weapon. (Exhibit 111). The jury returned an identical verdict for the death of Elza Raymond Wire. (Id.). On October 4, 2000, the State filed a notice of habitual criminal against Rosas. (Exhibit 113).
The Court sentenced Rosas on November 27, 2000, as follows: On Count 1, murder in the first degree with the use of a deadly weapon, life without the possibility of parole, with an equal and consecutive term for the use of a deadly weapon; on Count 2, murder in the first degree with the use of a deadly weapon, life without the possibility of parole, with an equal and consecutive term for the use of a deadly weapon, concurrent to Count 1; on Count 5, conspiracy to commit murder, 48-120 months, consecutive to Count 2; on Count 6, robbery with the use of a deadly weapon, 72-180 months, with an equal and consecutive term for the use of a deadly weapon, consecutive to Count 5; and on Count 8, conspiracy to violate the Uniformed Controlled Substances Act, 24-60 months, consecutive to Count 6. (Exhibit 117). The Court also found Rosas to be a habitual criminal, and sentenced him to 5-20 years, consecutive to Count 8. (Exhibit 117). On November 29, 2000, the court filed the judgment of conviction. (Exhibit 118).
Petitioner appealed from the conviction. (Exhibit 119 and 131). On December 17, 2001, the Nevada Supreme Court affirmed the conviction. (Exhibit 138). Petitioner petitioned for rehearing, which the Nevada Supreme Court denied. (Exhibits 139 and 140). The Nevada Supreme Court issued a clerical correction to its opinion. (Exhibit 140). On May 28, 2002, remittitur issued. (Exhibit 141).
Petitioner filed a pro se post-conviction habeas petition in the district court on August 26, 2002. (Exhibit 147). Following appointment of post-conviction counsel, petitioner filed his first supplement to his petition on November 25, 2002. (Exhibit 156). On June 13, 2003, petitioner filed a second supplement to his petition. (Exhibit 168). Following an evidentiary hearing, the state district court denied the state habeas petition. (Exhibits 171 and 172).
Petitioner appealed the denial of his state post-conviction habeas petition. (Exhibit 173 and 182). The Nevada Supreme Court affirmed the state district court's denial of the post-conviction petition on June 22, 2005. (Exhibit 186). On July 19, 2005, remittitur issued. (Exhibit 188).
On August 22, 2005, petitioner dispatched his pro se federal habeas petition to a correctional officer for mailing. (ECF No. 7, at p. 1). Respondents moved to dismiss the original petition. (ECF No. 11). Petitioner moved for the appointment of counsel and an evidentiary hearing. (ECF Nos. 18 & 19). On March 29, 2006, the Court granted petitioner's motion for the appointment of counsel and denied respondents' motion to dismiss without prejudice. (ECF No. 22). The first amended federal petition, filed November 20, 2006, raised the following grounds for relief:
(ECF No. 32). On January 4, 2007, respondents moved to dismiss the first amended petition on the grounds that certain claims were unexhausted, certain claims were untimely because they did not relate back to the original petition, and certain claims were procedurally barred. (ECF No. 35). By order filed September 13, 2007, this Court granted respondents' motion to dismiss in part, and denied the motion in part. (ECF No. 46). The Court ruled that the first amended petition was mixed, in that Grounds One, Four, Five, Six, Seven and Nine were unexhausted, while Grounds Two, Three, Eight, and Ten of the petition were exhausted. (Id.). The Court concluded that Grounds Four, Six, Seven, Eight, and Ten of the first amended petition related back to the original petition pursuant to Mayle v. Felix, 545 U.S. 644 (2005), and were therefore timely. (Id.). The Court also concluded that Grounds Two and Four were not procedurally barred from review. (Id.). The Court gave petitioner options for handling his unexhausted claims. (Id.). Petitioner filed a motion for reconsideration. (ECF No. 47). By order filed July 2, 2008, this Court denied the motion for reconsideration. (ECF No. 53). Petitioner filed a motion for a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005), to return to state court for the purpose of exhausted his unexhausted grounds for habeas relief. (ECF No. 56). On September 16, 2008, this Court granted petitioner's motion for a stay and abeyance. (ECF No. 61).
On November 3, 2008, petitioner filed a second post-conviction habeas petition in the state district court. (Exhibit 203). The State filed a motion to dismiss the petition. (Exhibit 207). The state district court held a hearing on the motion on February 3, 2010. (Exhibit 214). The parties submitted further briefing. (Exhibits 215-229). A second hearing was held on November 18, 2010 in the state district court. (Exhibits 232 & 233). On January 5, 2011, the state district court filed findings of fact, conclusions of law, and order denying the petition for writ of habeas corpus. (Exhibit 237). Petitioner appealed the denial of his second post-conviction habeas petition. (Exhibits 241 & 242). On June 14, 2012, the Nevada Supreme Court issued an order affirming the denial of the second post-conviction habeas petition as procedurally barred, specifically, as untimely, successive, and abuse of the writ. (Exhibit 247). Petitioner filed a motion for rehearing. (Exhibit 248). The Nevada Supreme Court denied rehearing on February 5, 2013. (Exhibit 254). Remittitur issued on March 4, 2013. (Exhibit 255).
On April 17, 2013, petitioner, through counsel, filed a motion to reopen this case, his further state proceedings having concluded. (ECF No. 63). On May 7, 2013, this Court granted petitioner's motion to reopen this case and granted leave to file a second amended petition. (ECF No. 67). On August 1, 2013, petitioner filed a second amended petition. (ECF No. 68). The second amended petition raises the following grounds for relief:
(ECF No. 68). On January 22, 2014, respondents filed a motion for leave to file excess pages (ECF No. 77) and a motion to dismiss the second amended petition (ECF No. 78). Petitioner, through counsel, filed an opposition to the motion to dismiss on April 11, 2014. (ECF No. 83). Respondents moved for an extension of time in which to file a reply. (ECF No. 84). By order filed April 21, 2014, the Court granted respondents an extension of time, up to and including May 12, 2014, in which to file a reply. Respondents did not file a reply.
On January 22, 2014, respondents filed a motion for leave to file a motion to dismiss in excess of thirty pages. (ECF No. 77). Good cause appearing, the motion is granted. The Court now addresses the arguments presented in the motion to dismiss and petitioner's opposition thereto.
A federal court will not grant a state prisoner's petition for habeas relief until the prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his claims before he presents those claims in a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has given the highest available state court the opportunity to consider the claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9
Respondents argue that Ground Eight of the second amended petition is unexhausted. Respondents asserted this argument in their motion to dismiss the first amended petition. (ECF No. 35, at pp. 21-23). In Ground Eight, petitioner claims that the trial court's admission of testimony of prior bad acts denied his rights to due process and a fair trial. (ECF No. 68, at pp. 44-47). Petitioner alleges that the trial court improperly admitted the testimony of Liana Barraza, who testified as to a conversation she had with petitioner concerning Katie Riley. (Id., at p. 44). Petitioner contends that Barraza's testimony was prejudicial because it inferred that if petitioner was willing to have a woman assaulted over a drug deal, he would be capable and willing to murder, or have murdered, a man who owed him money for drugs. (Id., at pp. 44-46). Petitioner lists several other instances of bad act evidence that were properly admitted against him at trial. (Id., at pp. 46-47). This Court previously determined that Ground Eight was exhausted in state court. (ECF No. 46, at pp. 13-14). Ground Eight was fairly presented to the Nevada Supreme Court in petitioner's opening brief on direct appeal. (Exhibit 131). Ground Eight of the second amended petition is exhausted.
Respondents arguments regarding the timeliness of Grounds Five, Seven, Eight, and Ten of the second amended petition are nearly identical to the arguments made in their prior motion to dismiss these same grounds of the first amended petition.
Respondents argue that Grounds One, Two, Five, Six, Seven, and Ten of the second amended petition were procedurally defaulted in state court and are therefore procedurally barred in this federal habeas proceeding.
In Coleman v. Thompson, 501 U.S. 722 (1991), the United States Supreme Court held that a state prisoner's failure to comply with the state's procedural requirements in presenting his claims is barred from obtaining a writ of habeas corpus in federal court by the adequate and independent state ground doctrine. Coleman, 501 U.S. at 731-32 ("Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance."). Where such a procedural default constitutes an adequate and independent state ground for the denial of habeas corpus relief, the default may be excused only "if a constitutional violation has probably resulted in the conviction of one who is actually innocent," or if the prisoner demonstrates cause for the default and prejudice resulting from it. Murray v. Carrier, 477 U.S. 478, 496 (1986).
A state procedural bar is "adequate" if it is "clear, consistently applied, and well-established at the time of the petitioner's purported default." Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9
The claims presented in Grounds One, Two, Five, Six, Seven, and Ten were presented in the second post-conviction habeas petition filed on his return to state court while this case was stayed. (Exhibits 203-256). By order filed June 14, 2012, the Nevada Supreme Court found that the petition was untimely under Nevada state law, explicitly citing NRS 34.726(1). (Exhibit 247, at p. 1). The Nevada Supreme Court also found that the petition was successive and an abuse of the writ, citing NRS 34.810(1)(b) and NRS 34.810(2). (Id.). Further, the Nevada Supreme Court found that petitioner failed to show good cause to excuse his procedural defaults. (Id., at pp. 2-5).
The Ninth Circuit has held that the Nevada Supreme Court's application of the timeliness rule in NRS 34.726(1) is an independent and adequate state law ground for procedural default. Moran v. McDaniel, 80 F.3d 1261, 1268-70 (9
To overcome a claim that was procedural defaulted in state court, a petitioner must establish either (1) cause for the default and prejudice attributable thereto or (2) that failure to consider the defaulted claims will result in a "fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted).
To prove a "fundamental miscarriage of justice," petitioner must show that the constitutional error of which he complains "has probably resulted in the conviction of one who is actually innocent." Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Murray v. Carrier, 477 U.S. at 496). "Actual innocence" is established when, in light of all of the evidence, "it is more likely than not that no reasonable juror would have convicted [the petitioner]." Bousley v. United States, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. at 623. Petitioner can make a showing of "actual innocence" by presenting the court with new evidence which raises a sufficient doubt as "to undermine confidence in the result of the trial." Schlup v. Delo, 513 U.S. at 324.
To demonstrate cause for a procedural default, the petitioner must "show that some objective factor external to the defense impeded" his efforts to comply with the state procedural rule. Murray, 477 U.S. at 488. For cause to exist, the external impediment must have prevented the petitioner from raising the claim. See McClesky v. Zant, 499 U.S. 467, 497 (1991). With respect to the prejudice prong, the petitioner bears "the burden of showing not merely that the errors [complained of] constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." White v. Lewis, 874 F.2d 599, 603 (9
Petitioner asserts that there is cause and prejudice to excuse the procedural default of his claims. Petitioner asserts that the ineffective assistance of counsel constitutes cause and prejudice to excuse the procedural default. See Martinez v. Ryan, 132 S.Ct. 1309 (2012). The Court has determined that the analysis of cause and prejudice arguments in this case are closely related to the analysis on the merits of the case. Therefore, the Court will defer ruling on cause and prejudice issue until the merits are fully briefed. These issues shall be addressed in the answer and reply brief.
