Opinion
2:17-cv-02292-RFB-NJK
08-09-2022
ANTONIO LEE MIXON, Petitioner, v. BRIAN E. WILLIAMS, et al., Respondents.
ORDER
RICHARD F. BOULWARE, II, DISTRICT JUDGE
This is a habeas corpus proceeding under 28 U.S.C. § 2254. Respondents have filed a motion to dismiss in response to Petitioner Mixon's first amended petition for a writ of habeas corpus (ECF No. 44). ECF No. 65. Respondents argue that Ground 5 of the petition is unexhausted and procedurally defaulted. For reasons that follow, the motion is granted.
I. PROCEDURAL BACKGROUND
Having initially been charged with murder, Mixon entered a negotiated plea of guilty to voluntary manslaughter with the use of a deadly weapon. ECF No. 23-14 at 2-6. In December 2012, the state district court sentenced Mixon to consecutive ten-year sentences with parole eligibility on each after four years. ECF No. 23-15 at 3-4. Mixon did not appeal his judgment of conviction.
Mixon initiated state post-conviction proceedings in December 2013, ECF No. 23-26, and thereafter filed numerous pleadings in state court, including a counseled supplemental petition, ECF No. 24-13. The state district court held an evidentiary hearing, ECF No. 24-19, and subsequently denied relief, ECF No. 24-20 at 1-15. Mixon appealed. ECF No. 24-22.
Through counsel, Mixon filed an opening brief, but the Nevada Supreme Court subsequently granted Mixon's motion to dismiss counsel and proceed pro se. ECF No. 24-33 at 23. The court directed Mixon to file his own brief and indicate whether it was intended to supplement or replace the brief filed by counsel. Id. at 2. Mixon filed an informal brief indicating that he wanted his brief to replace, rather than supplement, the counseled brief. ECF No. 24-34 at 2.
The Nevada Supreme Court then referred the matter to the Nevada Court of Appeals for disposition. ECF No. 24-37. In August 2017, the Nevada Court of Appeals entered an order affirming the district court's denial of relief. ECF No. 24-41 at 2-6. That same month, Mixon initiated this federal habeas proceeding. ECF No. 1.
After Mixon filed an amended petition in January 2019 (ECF No. 44), Respondents filed a motion to dismiss with respect to three grounds for relief - Grounds 3, 4, and 5. ECF No. 46. In ruling upon the motion, this Court dismissed Grounds 3 and 4, and concluded Ground 5 was unexhausted. ECF No. 53. The Court subsequently granted Mixon's motion for stay and abeyance to allow him to return to state court to exhaust Ground 5. ECF No. 56. This case was re-opened pursuant to Mixon's motion (ECF No. 57) in September 2021. ECF No. 58. On January 3, 2022, Respondents filed the motion to dismiss now before the Court for decision. ECF NO. 65.
II. EXHAUSTION REQUIREMENT
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 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).
III. DISCUSSION
In Ground 5, Mixon alleges that he is actually innocent of voluntary manslaughter with use of a deadly weapon, the charge for which we was convicted pursuant to a guilty plea. Respondents argue that Mixon failed to exhaust the claim because, although he raised it in his state postconviction petition in the state district court, he failed to properly appeal the state district court's denial of the petition.
Respondents are correct with respect Mixon's failure to fairly present Ground 5 to Nevada's highest court. Mixon's appeal of the lower court's denial of his petition was dismissed for lack of jurisdiction by the Nevada Supreme Court because it was untimely. See ECF Nos. 6611, 66-20. Thus, Ground 5 remains unexhausted. See Casey, 386 F.3d at 916 (noting that to satisfy exhaustion requirement a claim must be “raised at all appellate stages afforded under state law”). And, because Nevada procedural rules would now bar consideration of Ground 5, the claims is technically exhausted but deemed procedurally defaulted. See Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011).
A federal habeas petitioner can overcome a procedural default by demonstrating actual innocence of the crime underlying his conviction. Schlup v. Delo, 513 U.S. 298, 313-15 (1995); McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). Here, Mixon's actual innocence claim is based on the lack of reliable evidence (primarily ballistics evidence) showing that he was the one who shot the person he was charged with killing. ECF No. 44 at 16-21. He does not, however, point to any new and reliable evidence to establish his innocence. See Schlup, 513 U.S. at 324 (petitioner must support his actual innocence claim with “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial”). Moreover, Mixon admitted in open court that he shot his victim. ECF No. 2320 at 5-6. Accordingly, Mixon has not shown that the actual innocence exception to procedural default applies, nor has he shown that his default should be excused for any other reason.
IV. CONCLUSION
The Court concludes that Ground 5 shall be dismissed as procedurally defaulted.
IT IS THEREFORE ORDERED that Respondents' motion to dismiss (ECF No. 65) is GRANTED. Ground 5 of Petitioner's amended habeas petition (ECF No. 44) is dismissed.
IT IS FURTHER ORDERED that Respondents have 60 days from the date of entry of this order to file an answer to the remaining grounds for relief in the petition - i.e., Grounds 1 and 2. Petitioner shall have 60 days from the date on which the answer is served on him to file and serve a reply.
IT IS FURTHER ORDERED that Petitioner's motion for status check (ECF No. 63) is DENIED as moot.