Opinion
3:05-cv-00582-LRH-VPC.
August 22, 2007
ORDER
This action proceeds on the Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, by Christopher A. Jones, a Nevada prisoner represented by counsel. Before the Court are respondents' "Motion to Dismiss and Answer to Petition for Writ of Habeas Corpus" (Docket #15) and petitioner's Response (Docket #19).
I. Factual and Procedural Background
A. State Court Proceedings
Petitioner Jones was charged, in Nevada's Eighth Judicial District, with one count of First Degree Murder with the Use of a Deadly Weapon, two counts of Attempted Murder with the Use of a Deadly Weapon, and three counts of Discharging a Firearm at or into a Structure. (Exhibit 4.) At the jury trial, petitioner was found guilty of First Degree Murder and was found not guilty as to all other counts. (Exhibits 40-41). After the guilty verdict, Jones entered into a stipulation with the State wherein he waived his right to a direct appeal and a separate penalty hearing; he stipulated to a sentence of life with the possibility of parole for First Degree Murder, and a consecutive life with the possibility of parole for the Deadly Weapon enhancement. (Exhibit 43). On June 25, 1996, the state trial court adjudged petitioner guilty of First Degree Murder with Use of a Deadly Weapon and sentenced him according to the stipulation of the parties. (Exhibit 48). The Judgment of Conviction was entered on July 1, 1996. (Exhibit 49).
The exhibits referred to in this Order are located in the record of Jones' first federal petition, CV-N-01-0038-DWH-VPC, at Docket #16, #17, #18, and #19. Petitioner has supplemented the record with Exhibits 102-115 found in 3:05-CV-0582-LRH-VPC at Docket #3.
Petitioner did not pursue a direct appeal. On April 22, 1997, he filed a Motion to Withdraw from Stipulation and Order Waiving Separate Penalty Hearing and Waiving Appeal in the Eighth Judicial District Court ("Motion to Withdraw Stipulation"). (Exhibits 56, 57, and 59). Less than one month later, on May 14, 1997, petitioner filed a state post-conviction petition for writ of habeas corpus. (Exhibits 68 and 69). The State filed a joint opposition to both the Motion to Withdraw the Stipulation and to the state habeas petition. (Exhibit 71). Both matters were heard on June 10, 1997, and were denied. (Exhibits 74 and 76). The Findings of Fact, Conclusions of Law and Order was signed and filed by the state court on June 12, 1997. (Exhibit 74).
On July 9, 1997, petitioner filed a notice of appeal of the denial of his state habeas petition to the Nevada Supreme Court. (Exhibit 78). On July 29, 1997, the Court ordered that review of the complete record was warranted. (Exhibit 85). An opening brief was filed on December 15, 1997. (Exhibit 87). Nearly three years later, petitioner sought leave to file additional pages and an amended brief adding additional grounds to the original opening brief. (Exhibits 88, 89, and 90). The Nevada Supreme Court stamped these documents "received" on September 8, 2000. (Exhibit 90). On September 11, 2000, one business day after it received petitioner's motion to amend and amended brief, the Nevada Supreme Court entered its Order Dismissing Appeal. (Exhibit 91). Rehearing was denied on December 29, 2000. (Exhibit 93). Remittitur issued on January 17, 2001. (Exhibit 94).
Jones' first federal petition for a writ of habeas corpus was filed on January 18, 2001, in case number CV-N-01-0038-DWH-VPC (Jones I). On April 9, 2002, petitioner filed the Second Amended Petition for a Writ of Habeas Corpus, setting forth eight grounds of relief. (Docket #26 in Jones I, CV-N-01-0038-DWH-VPC). The action was dismissed without prejudice to allow petitioner an opportunity to exhaust Grounds Two (ineffective assistance of counsel for failure to file an appeal) and Eight (ineffective assistance of counsel for failure to object to prosecutor's closing argument). (Docket #37 and #43). On October 3, 2003, this Court entered a "stay-and-abey" order allowing petitioner to return to state court to exhaust Grounds Two and Eight. (Docket #46).
Petitioner returned to the Eighth Judicial District Court of Nevada and filed a second post-conviction petition raising three grounds for relief: (1) a due process violation resulting from improper commentary, personal opinions, and disparagement of the defense in the prosecutor's closing arguments; (2) denial of effective assistance of counsel because there was no objection to the prosecutor's closing arguments; and (3) denial of effective assistance of counsel because counsel failed to file a notice of appeal on petitioner's behalf. (Exhibit 93). On June 11, 2004, the state district court entered its Findings, Conclusions, and Order denying the second habeas petition. (Exhibit 109).
Petitioner appealed and the Nevada Supreme Court entered an order of affirmance on March 26, 2005. (Exhibits 110 and 114). Remittitur issued on Jones's appeal on May 5, 2005.
B. Federal Habeas Proceedings
Jones's first federal petition for writ of habeas corpus was filed on January 18, 2001, in case number CV-N-01-0038-DWH-VPC (Jones I). The petition was amended twice and ultimately dismissed without prejudice and with leave to reopen to allow Jones an opportunity to exhaust Grounds Two and Eight. Jones returned to this Court with a motion to reopen his federal habeas corpus petition. (Docket #51). On October 26, 2005, this Court granted the motion to re-open and the action was assigned the new case number 3:05-CV-0582-LRH-VPC (Jones II), Docket #1). On November 30, 2005, an amended petition was filed incorporating the newly exhausted grounds for relief and supplementing the record. (Docket #2; Exhibits, Docket #3). On February 13, 2006, respondents filed a motion to dismiss the petition, claiming that Grounds 2-6, 8, and 9 of the petition were procedurally defaulted. (Docket #8). By Order filed July 19, 2006, this Court granted the motion, finding that Grounds 2, 3, 4, 5, 6, 8, and 9 of the Amended Petition were procedurally defaulted in state court, and that petitioner had not made a showing of cause for the procedural default. Claims 2, 3, 4, 5, 6, 8, and 9 of the amended petition were dismissed with prejudice. Respondents were directed to file an answer as to the remaining claims in the amended petition, Grounds One and Seven. (Docket #10).
II. The Instant Motion to Dismiss (Docket #15)
In their motion, respondents contend that Ground Seven of the amended petition is an unexhausted claim, and further, that it would be procedurally barred if it is now presented to the state court, and therefore should be dismissed. In Ground Seven of the amended petition, petitioner alleges ineffective assistance of counsel (IAC) for trial counsel's failure to object to certain bad act evidence admitted at trial. (Docket #2, at pp. 31-33). Petitioner asserts that this claim was presented to the Nevada Supreme Court in Ground VIII of Appellant's Amended Opening Brief, at Exhibit 90. (Docket #2, at pp. 31-32). The Amended Opening Brief was received by the Nevada Supreme Court one business day before the Court entered its Order Dismissing Appeal. This Court previously determined that the claims presented in the Amended Opening Brief were not fairly presented to the Nevada Supreme Court, as follows:
[T]his court is even more convinced, after again reviewing the state court record, that Grounds Two and Eight are unexhausted. To demonstrate that these claims were fairly presented [to] the Nevada Supreme Court, petitioner relies on arguments he included in an "amended opening brief" to the state's highest court. Docket #19, Exhibit 90. Petitioner's initial opening brief was filed in that matter on December 15, 1997. Id., Exhibit 87. The amended brief which petitioner relies upon for exhaustion purposes was received by the Nevada Supreme Court nearly three years later on Friday, September 8, 2000. The Nevada Supreme Court filed its order dismissing the appeal on the next business day — September 11, 2000. Id., Exhibit 91. As such, petitioner did not give the Court a fair opportunity to review his amended brief before the Court issued its decision. Consequently, this court cannot conclude that arguments contained in the amended brief effected state court exhaustion on Grounds Two and Eight. See Solis v. Garcia, 219 F.3d 922, 930 (9th Cir. 2000).
(Order, filed July 15, 2003, Docket #43, in Jones I, CV-N-01-0038-DWH-VPC). Ground Seven in the instant action (Jones II) was also presented to the Nevada Supreme Court in the Amended Opening Brief and this Court now finds that it similarly was not fairly presented to the Nevada Supreme Court. As such, Ground Seven is unexhausted.
In the response to the motion to dismiss, petitioner points out that Ground Seven of the instant petition is the same claim as Ground Seven in Jones I, CV-N-01-0038-DWH-VPC. (Docket #26, pp. 29-31). Petitioner argues that the State has waived the exhaustion defense because, in the prior motion to dismiss filed in Jones I, CV-N-01-0038-DWH-VPC, respondents only challenged Grounds Two and Eight as unexhausted, but not Ground Seven. Petitioner contends that the failure to challenge Ground Seven inJones I constituted the State's "express waiver" of the exhaustion defense now asserted against Ground Seven of the instant petition.
The AEDPA provides that "[a] State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." 28 U.S.C. 2254(b)(3) (emphasis added). Exhaustion is a defense that the State can waive only expressly. Id.; see Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002) (holding that while the exhaustion defense may only be waived expressly pursuant to § 2254(b)(3), that statutory provision has no bearing on pre-AEDPA precedent regarding waiver of the procedural default defense); see also Kunkle v. Dretke, 352 F.3d 980, 989-991 (5th Cir. 2003) (failure to raise exhaustion defense in answer and arguing claim on the merits did not constitute express waiver by the State) ; Lurie v. Wittner, 228 F.3d 113, 123 (2nd Cir. 2000) ("cryptic observation" by State's counsel that petitioner "did make these arguments in the appellate division" was not an express waiver of exhaustion of state remedies); McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir. 2005) ("the State's failure to raise exhaustion does not constitute a waiver under the AEDPA"); Hale v. Gibson, 227 F.3d 1298, 1327, n. 12 (10th Cir. 2000) (noting that, pursuant to § 2254(b)(3), the State may raise exhaustion at any time, including for the first time, on appeal).
In the instant case, petitioner cites no legal authority for the proposition that respondents' failure to assert the exhaustion defense in an earlier proceeding constitutes an express waiver by the State. This Court finds that respondents' failure to raise the exhaustion defense earlier does not constitute an "express waiver" of the defense within the meaning of 28 U.S.C. § 2254(b)(3).
Petitioner further contends that this Court is bound by the "law of the case." Petitioner asserts that this Court, in its Order of February 25, 2003, "treated" Ground Seven as an exhausted claim because it identified only Grounds Two and Eight of the petition in Jones I as unexhausted. (Order, filed February 25, 2003, in Jones I, CV-N-01-0038-DWH-VPC, at Docket #37). The Court rejects petitioner's characterization of this Court's treatment of Ground Seven. At that juncture, respondents had asserted the exhaustion defense only as to Grounds Two and Eight. This Court ruled on the issues before it and never made the determination that Ground Seven was exhausted. (Order, filed February 25, 2003, in Jones I, CV-N-01-0038-DWH-VPC, at Docket #37).
This Court now finds that the State did not expressly waive the exhaustion defense with respect to Ground Seven of the instant petition. The Court further finds, as discussed supra, that Ground Seven was not fairly presented to the Nevada Supreme Court, and as such, is an unexhausted claim.
With respect to respondents' argument that Ground Seven should be dismissed as procedurally defaulted, this proposition goes too far. Respondents argue that if petitioner attempted to return to state court to exhaust Ground Seven, that the claim would likely be procedurally barred as untimely. NRS 34.726 provides that a petitioner may not bring a petition that challenges the validity of a judgment or sentence more than one year after entry of the judgment of conviction, or more than one year after the Supreme Court has issued its remittitur regarding a direct appeal, "unless there is good cause shown for the delay." Furthermore, the statute goes on to clarify that "good cause" exists if the petitioner can demonstrate to the court "(a) that the delay is not the fault of petitioner; and (b) that dismissal of the petition as untimely will unduly prejudice the petitioner." Petitioner can overcome the time limit in NRS 34.726 by demonstrating good cause. Petitioner's chance of obtaining a review of the merits of his unexhausted claim (Ground Seven) may be small, but it is not non-existent. To simply accept the assertion that petitioner would be procedurally defaulted upon his return to state court "would be to ignore the twin purposes of the exhaustion doctrine . . . (1) the consideration due a sovereign State's court's efforts to right federal constitutional wrongs and (2) the advantage, on federal habeas review, of a record fully developed in prior habeas proceedings in the state system." Sechrest v. Ignacio, 943 F. Supp. 1245, 1252 (D. Nev. 1996) ( citing Harris v. Reed, 489 U.S. 255, 268-269 (1989)). As in Sechrest, this Court will not assume, as respondents urge, that petitioner could not persuade the Nevada Supreme Court to reach the merits of his unexhausted claim. Thus, while this Court finds that Ground Seven is unexhausted, the Court also finds that it is not appropriate to dismiss Ground Seven on procedural default grounds.
Finally, the Court notes that respondents also seek dismissal of Ground One of the amended petition on the merits. The Court will defer determination on the merits of Ground One until resolution of the exhaustion issue regarding Ground Seven.
III. Conclusion
Because the Court finds that the petition is a mixed petition, containing both exhausted and unexhausted claims, petitioner has several options. In the past, it has been the practice of this Court to permit a petitioner the option of abandoning his unexhausted claims and proceeding on the merits of those that are properly exhausted or voluntarily dismissing the action without the entry of judgment, to permit a return to state court. However, in Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed some limitations upon the discretion of this Court to facilitate habeas petitioners' return to state court to exhaust claims. The Rhines Court stated:
[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").Rhines, 544 U.S. at 277.
Because petitioner's federal habeas petition is a mixed petition containing both exhausted and unexhausted claims, it must be dismissed by this Court. Prior to dismissing this case, however, petitioner will be provided the following three options:
1. He may submit a sworn declaration voluntarily abandoning the unexhausted claim in his federal habeas petition, and proceed only on the exhausted claim;
2. He may return to state court to exhaust his unexhausted claim, in which case his federal habeas petition will be denied without prejudice but will not be stayed during his return to state court; or
3. He may file a motion, pursuant to the requirements of Rhines, asking this Court to stay and abey his exhausted federal habeas claim while he returns to state court to exhaust his unexhausted claim.
Petitioner's failure to choose any of the three options listed above will result in his federal habeas petition being dismissed. Petitioner is also advised to be familiar with the limitations periods for filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations periods may have a direct and substantial effect on whatever choice he makes regarding his petition. IT IS THEREFORE ORDERED that respondents' Motion to Dismiss (Docket #15) is GRANTED IN PART AND DENIED IN PART, as follows: Respondents' motion is granted to the extent that the Court concludes that Ground Seven of the federal habeas petition is unexhausted. The motion to dismiss Ground Seven on procedural default grounds is denied. The motion to dismiss Ground One is denied without prejudice and subject to renewal of the arguments after resolution of the exhaustion issue regarding Ground Seven. IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to do one of the following: (1) inform this Court in a sworn declaration that he wishes to formally and forever abandon the unexhausted ground for relief in his federal habeas petition (Ground Seven), and proceed only on Ground One; OR (2) inform this Court in a sworn declaration that he wishes to dismiss this petition without prejudice in order to return to state court to exhaust his unexhausted claim; OR (3) file a motion pursuant to the requirements of Rhines v. Weber, 544 U.S. 269 (2005), asking this Court to hold his exhausted claim in abeyance while he returns to state court to exhaust his unexhausted claim (Ground Seven).
IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted ground (Ground Seven), respondents shall have thirty (30) days from the date petitioner serves his declaration of abandonment in which to file an answer or response to petitioner's remaining ground for relief (Ground One). Petitioner shall thereafter have twenty (20) days following service of respondents' answer in which to file a reply.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within the time permitted, this case may be dismissed.
IT IS FURTHER ORDERED that the Court defers determination on the merits of Ground One until after resolution of the exhaustion issue regarding Ground Seven.