Lyons v. Williams ( 2021 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DAVON LYONS, Case No.: 2:19-cv-00966-APG-NJK 4 Petitioner, Order Denying Motion to Dismiss 5 v. [ECF No. 37] 6 WARDEN BRIAN WILLIAMS, et al., 7 Respondents. 8 This is a habeas corpus action under 28 U.S.C. § 2254. The respondents have filed a 9 motion to dismiss.1 I find that the action is timely and that petitioner Davon Lyons has 10 exhausted his state-court remedies for all his claims. I thus deny the motion to dismiss. 11 I. Procedural History 12 A. Proceedings Relevant to the Judgment of Conviction 13 Lyons was charged with 31 crimes arising out of three separate robberies in February and 14 March 2013: one count of burglary, three counts of burglary while in possession of a deadly 15 weapon, two counts of coercion, three counts of conspiracy to commit burglary, one count of 16 conspiracy to commit coercion, three counts of conspiracy to commit first-degree kidnapping, 17 three counts of conspiracy to commit robbery, two counts of first-degree kidnapping with the use 18 of a deadly weapon, three counts of first-degree kidnapping (victim 60 years of age or older), one 19 count of possession of controlled substance with the intent to sell, two counts of possession of 20 stolen property, two counts of possession of stolen property (firearm), two counts of robbery 21 with the use of a deadly weapon, and three counts of robbery with the use of a deadly weapon 22 23 1 ECF No. 37. 1 (victim 60 years of age or older).2 Lyons agreed to plead guilty to the following counts: 2 (1) First-degree kidnapping, (2) conspiracy to commit robbery, (3) robbery with the use of a 3 deadly weapon, (4) conspiracy to commit kidnapping, (5) robbery with the use of a deadly 4 weapon, (6) conspiracy to commit robbery, (7) burglary, and (8) possession of stolen property.3 5 The parties jointly recommended a sentence for first-degree kidnapping of 15 years 6 imprisonment, with parole eligibility starting after a minimum of five years.4 The plea 7 agreement also grouped the offenses. The prosecution did not oppose having the sentences for 8 counts 1 and 2 running concurrently, counts 3 and 4 running concurrently, and counts 5 and 6 9 running concurrently, but the prosecution retained the right to ask for those three groups to run 10 consecutively.5 The prosecution also did not oppose having the sentences for counts 7 and 8 run 11 concurrently with all other counts.6 12 On July 1, 2014, Nevada state laws regarding aggregation of consecutive sentences came 13 into effect. “For offenses committed on or after July 1, 2014, if the court imposes the sentences 14 to run consecutively, the court must pronounce the minimum and maximum aggregate terms of 15 imprisonment. . . .”7 “If all the sentences impose a minimum and maximum term of 16 imprisonment, the court must aggregate the minimum terms of imprisonment to determine the 17 minimum aggregate term of imprisonment and must aggregate the maximum terms of 18 19 20 2 Ex. 5 (ECF No. 39-1). 21 3 Ex. 34 at 1 (ECF No. 40-17 at 2). 4 Ex. 34 at 2 (ECF No. 40-17 at 3). 22 5 Id. 23 6 Id. 7 Nev. Rev. Stat. § 176.035(1). 1 imprisonment to determine the maximum aggregate term of imprisonment.”8 A prisoner whose 2 consecutive sentences were not aggregated may make a one-time irrevocable election to 3 aggregate those consecutive sentences.9 However, if the prisoner has been considered for parole 4 on one or more of the consecutive sentences, those sentences may not be included in the 5 aggregation.10 6 On February 13, 2015, the state district court entered a judgment of conviction that 7 followed the guidance of the guilty plea agreement. The sentences were: (1) 5 to 15 years, (2) 2 8 to 5 years, concurrent with count 1, (3) 5 to 15 years, plus a consecutive 2 to 5 years for use of a 9 deadly weapon, consecutive to count 1, (4) 2 to 5 years, concurrent with count 3, (5) 5 to 15 10 years, plus a consecutive 2 to 10 years for use of a deadly weapon, consecutive to count 4, (6) 2 11 to 5 years, concurrent with count 5, (7) 3 to 9 years, concurrent with count 6, and (8) 3 to 9 years, 12 concurrent with count 7.11 The court gave Lyons credit for 685 days’ time served12 and 13 pronounced an aggregate sentence of a maximum of 60 years and a minimum of 19 years.13 14 On July 18, 2016, the court entered an amended judgment of conviction which omitted 15 the aggregate sentence.14 With the sentences no longer aggregated, Lyons went before the parole 16 board for his kidnapping sentence on December 6, 2017, April 5, 2018, and December 31, 2018. 17 18 8 Nev. Rev. Stat. § 176.035(2)(b). 19 9 Nev. Rev. Stat. § 213.1212(5) (formerly § 213.1212(3)). 20 10 Nev. Rev. Stat. § 213.1212(5)(b). 11 Ex. 38 at 2-3 (ECF No. 41-1 at 3-4). 21 12 Ex. 38 at 3 (ECF No. 41-1 at 4). 22 13 Id. At the sentencing hearing on February 2, 2015, the judge erroneously stated that the aggregate maximum term was 65 years. Ex. 37 at 28-29 (ECF No. 40-20 at 29-30). The error 23 was corrected in the judgment of conviction. 14 Ex. 61 (ECF No. 41-24). 1 The parole board took no action in the first meeting, but in the next two meetings it denied Lyons 2 parole to his next sentence for at least two years.15 Around that time, Lyons made an election to 3 aggregate his sentences under Nev. Rev. Stat. § 213.1212. The sentence for kidnapping was not 4 included in the aggregation because Lyons already had been considered for parole on that 5 sentence.16 Practically, Lyons would need to spend at least 21 years in prison, not 19, before 6 being considered for parole and release from prison.17 7 On October 10, 2019, Lyons filed a proper-person motion to amend or modify the 8 judgment of conviction.18 He asked the state district court for relief from the minimum 9 sentences that he was serving. The court denied the motion, stating that the pronouncement of 10 the aggregate sentence was erroneous because Lyons had committed his crimes before July 1, 11 2014, and § 176.035 requires aggregate sentencing only for crimes committed on or after July 1, 12 2014.19 13 Around this time, Lyons commenced the current federal habeas corpus proceedings in 14 this court. I appointed the Federal Public Defender to represent him. Lyons’ counsel filed in 15 state court a motion to correct an illegal sentence and a post-conviction petition challenging the 16 computation of time.20 In the motion to correct an illegal sentence, Lyons argued that the state 17 district court did not have jurisdiction to amend the conviction, that Lyons did not receive notice 18 or an opportunity to be heard before the amendment, and that he was serving an effectively 19 20 15 Ex. 96 at 3-4 (ECF No. 43-22 at 4-5). 21 16 Ex. 96 at 4-5 (ECF No. 43-22 at 5-6). 17 Id. 22 18 Ex. 94 (ECF No. 43-20). 23 19 Ex. 95 (ECF No. 43-21). 20 Ex. 96, 98 (ECF No. 43-22, ECF No. 43-24). 1 longer sentence than what the state district court had originally imposed.21 The Clark County 2 District Attorney opposed the motion to correct an illegal sentence, arguing that the version of 3 Nev. Rev. Stat. § 176.035 in effect at the time of the offenses, without aggregate sentencing, 4 controlled.22 The state district court granted Lyons' motion, rescinded the amended judgment of 5 conviction, and reinstated the original judgment of conviction with the aggregate sentence.23 6 Having received relief through the motion to correct an illegal sentence, Lyons dropped his post- 7 conviction petition challenging the computation of time. The Nevada Department of 8 Corrections, represented by the Nevada Attorney General, then moved to intervene.24 The state 9 district court denied that motion.25 10 B. Other Proceedings 11 Lyons appealed the judgment of conviction.26 The Supreme Court of Nevada transferred 12 the case to the Nevada Court of Appeals,27 which affirmed the judgment of conviction.28 13 Lyons then filed a post-conviction habeas corpus petition in the state district court.29 14 That court held an evidentiary hearing and denied the petition.30,31 Lyons appealed.32 The 15 16 21 Ex. 96 at 6-11 (ECF No. 43-22 at 7-12). 22 Ex. 103 (ECF No. 43-29). 17 23 Ex. 105 (ECF No. 43-31). 18 24 Ex. 106 (ECF No. 43-32). 25 Ex. 113 (ECF No. 44-7). 19 26 Ex. 39 (ECF No. 41-2). 20 27 Ex. 54 (ECF No. 41-17). 21 28 Ex. 55 (ECF No. 41-18). 29 Ex. 63 (ECF No. 41-26). 22 30 Ex. 69 (ECF No. 42-4). 23 31 Ex. 71 (ECF No. 42-6). 32 Ex. 74 (ECF No. 42-9). 1 Supreme Court of Nevada transferred the case to the Nevada Court of Appeals,33 which affirmed 2 the denial of the petition.34 3 Lyons dispatched his initial federal habeas corpus petition to this court on June 3, 2019.35 4 After appointment of counsel, Lyons filed a first amended petition on June 11, 2019.36 He filed 5 a second amended petition on June 8, 2020.37 6 II. Legal Standards 7 A. Timeliness 8 Lyons had one year from the date his judgment of conviction became final to file a 9 federal habeas corpus petition under 28 U.S.C. § 2254.38 Any time during which a properly filed 10 state-court petition for post conviction or other collateral review was pending does not count 11 toward that one-year period.39 An amended judgment of conviction that affects the sentence is a 12 new judgment of conviction for the purposes of 28 U.S.C. § 2244(d)(1)(A), resetting the 13 limitation clock.40 An amended judgment of conviction that corrects a scrivener’s error but does 14 not affect the sentence is not a new judgment and does not affect the period of limitations.41 15 16 17 18 33 Ex. 87 (ECF No. 43-13). 34 Ex. 88 (ECF No. 43-14). 19 35 ECF No. 5. 20 36 ECF No. 6. 21 37 ECF No. 22. 38 28 U.S.C. § 2244(d)(1)(A). 22 39 28 U.S.C. § 2244(d)(2). 23 40 Smith v. Williams, 871 F.3d 684, 687 (9th Cir. 2017). 41 Gonzalez v. Sherman, 873 F.3d 763, 772 (9th Cir. 2017). 1 B. Cognizable Claims After Entry of a Guilty Plea 2 A person who has pleaded guilty may not challenge his conviction on the basis of 3 constitutional violations that occurred before entry of the plea. He may challenge only the 4 voluntary and intelligent character of the plea by showing that he received bad advice from 5 counsel that amounted to ineffective assistance.42 6 C. Exhaustion 7 Before a federal court may consider a petition for a writ of habeas corpus, the petitioner 8 must exhaust the remedies available in state court.43 To exhaust a ground for relief, the 9 petitioner must fairly present that ground to the state’s highest court, describing the operative 10 facts and legal theory, and give that court the opportunity to address and resolve the ground.44 11 III. Discussion 12 A. This Action Is Timely 13 The respondents argue that the action is untimely because Lyons commenced this action 14 more than one-year after his original judgment of conviction became final. Lyons argues that the 15 action is timely because the reinstatement of the original judgment of conviction on April 2, 16 2020 reset the limitation clock. Lyons commenced this action in 2019, before reinstatement of 17 the original judgment of conviction. Lyons filed his operative second amended petition on June 18 8, 2020, 67 days after reinstatement of the original judgment of conviction.45 The respondents 19 counter that the amended judgment of conviction was an erroneous correction of a scrivener’s 20 21 42 Tollett v. Henderson, 411 U.S. 258, 267 (1973). 22 43 28 U.S.C. § 2254(b). 44 See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 23 4, 6 (1982). 45 ECF No. 22. 1 error and that the reinstatement of the original judgment corrected that error in the amended 2 judgment. I disagree. 3 The Ninth Circuit gave an example of a scrivener’s error in Gonzalez: 4 A scrivener’s error occurs when there is a discrepancy between the court’s oral pronouncement of the judgment and the written record of that judgment in the minute 5 order or in the abstract of judgment. For example, a scrivener’s error occurs if the oral pronouncement of judgment is “5 years” but the clerk writes “50 years” in the written 6 document reflecting that judgment.46 7 Something similar happened in Lyons’ criminal case when the judge orally stated that the 8 maximum aggregate term was 65 years, which was 5 years too long, but the written judgment 9 stated that the maximum aggregate term was 60 years. If, by example, the judge had said “60 10 years” and the judgment stated “65 years,” then I would have no problem concluding that an 11 amended judgment of conviction that only corrected that error was not a new judgment for the 12 purposes of § 2244(d)(1). 13 The respondents cite, among other cases, an earlier decision of mine that involved an 14 amended judgment and an aggregation of sentences.47 There, Anguiano received two 15 consecutive sentences of 8-to-20 years for crimes that she committed after July 1, 2014, but the 16 state district court did not include an aggregate sentence in the judgment of conviction. The state 17 court later entered an amended judgment that included an aggregate sentence of 16-to-40 years. 18 Anguiano filed a federal habeas corpus petition, and the timeliness of that petition depended 19 upon whether the amended judgment of conviction was a new judgment that reset the limitation 20 clock. I determined that it was not a new judgment. Under Nevada law, the sentences for the 21 22 23 46 Gonzalez, 873 F.3d at 772. 47 Anguiano v. Neven, 2020 WL 1076113 (D. Nev. Mar. 6, 2020), cited in ECF No. 54 at 4. 1 offenses never changed.48 The amended judgment of conviction just added those two sentences 2 together; it did not affect Anguiano’s sentences. 3 Something quite different happened to Lyons. The original judgment of conviction 4 aggregated the sentences, with a minimum of 19 years and a maximum of 60 years. The 5 amended judgment of conviction did not include the aggregate sentence. Then, and most 6 important, the parole board denied Lyons parole from his first consecutive sentence to his next 7 consecutive sentence for two years. At that point, Lyons would spend 21 years, not 19 years, in 8 prison before becoming eligible for parole that released him from prison. Moreover, even 9 though Lyons aggregated his other consecutive sentences, under state law that first consecutive 10 sentence could not be included in the aggregation. It was possible that the parole board could 11 deny parole more times, thus making Lyons spend even longer in prison before becoming 12 eligible for parole that released him from prison. 13 If Lyons did nothing to try to reinstate the original judgment, or if his efforts failed, then I 14 would easily determine that the amended judgment of conviction was a new judgment of 15 conviction for the purposes of § 2244(d)(1) because it affected his sentence. At that point, this 16 action becomes timely; by my calculations 325 non-tolled days passed between the finality of the 17 amended judgment of conviction, from which Lyons did not appeal, on August 17, 2016, and the 18 dispatching of the federal petition to this court on June 3, 2019. I would then need to determine 19 whether the grounds in the second amended petition relate back to the initial petition. 20 However, the amendments of the judgment did not stop there. Lyons succeeded, against 21 the respondents’ oppositions, in convincing the state court to vacate the amended judgment and 22 reinstate the original judgment of conviction with the aggregate sentence. Once again, the 23 48 2020 WL 1076113 at *2 (citing Mason v. State, 373 P.3d 116, 117 (Nev. 2016)). 1 amendment affected his sentence. Even though the order granting the motion to correct an 2 illegal sentence reinstated the original aggregate sentence, it amounted to a new judgment of 3 conviction that affected Lyons’ sentence.49 4 The parties fought over whether the law allowed the court to pronounce an aggregate 5 sentence. It does not matter in this court whether the ultimate decision of the state court was 6 correct as a matter of state law. What matters is that the parties were arguing over a substantive 7 matter of law, with substantive effects upon Lyons’ sentence. Amending the judgment, either to 8 remove or reinstate the aggregate sentence, thus was not a correction of a scrivener’s error in 9 Lyons’ case. 10 B. Claims One(A) and (B) Are Cognizable 11 The respondents argue that Claims One(A) and One(B) are claims of pre-plea 12 constitutional violations that are barred by Lyons’ guilty plea.50 In Claim One(A), Lyons argues 13 that trial counsel provided ineffective assistance because trial counsel did not move before trial 14 to dismiss the five counts of first-degree kidnapping as being subsumed by the five counts of 15 robbery.51 Each count of first-degree kidnapping carried a potential sentence of life 16 imprisonment.52 Lyons argues that if those charges and their potential life sentences were 17 dismissed, that would have been a major consideration in his decision to plead guilty.53 In Claim 18 One(B), Lyons argues that trial counsel provided ineffective assistance by not asking for a 19 continuance of the trial at the final counter call. Lyons argues that he was not ready for trial, that 20 21 49 Smith, 871 F.3d at 688. 50 See Henderson, 411 U.S. at 267. 22 51 ECF No. 22 at 8-9. 23 52 Nev. Rev. Stat. § 200.320(2). 53 ECF No. 22 at 10. 1 he felt rushed, scared, and surprised, and thus he decided to plead guilty.54 I agree with Lyons 2 that these are claims of ineffective assistance of counsel that affected his decision to plead guilty. 3 Henderson does not bar these claims.55 4 C. All Claims Are Exhausted 5 The respondents argue that Lyons has not exhausted his state-court remedies for Claims 6 One(A) through (E), Three, and Four. Each argument is the same: that Lyons alleges facts in the 7 second amended petition that he did not allege in his opening brief on post-conviction appeal.56 8 I have compared the issues that Lyons raised in his post-conviction appeal with the claims that he 9 has raised in his Second Amended Petition. In all the claims respondents challenge, any 10 additional facts that Lyons raises in the second amended petition do not fundamentally alter the 11 claims from what he raised in his brief on post-conviction appeal.57 Lyons has exhausted claims 12 One, Three, and Four. 13 IV. Conclusion 14 I THEREFORE ORDER that the respondents’ motion to dismiss (ECF No. 37) is 15 DENIED. 16 / / / / 17 / / / / 18 / / / / 19 / / / / 20 / / / / 21 54 ECF No. 22 at 11-12. 22 55 See Mahrt v. Beard, 849 F.3d 1164, 1169-71 (9th Cir. 2017). 23 56 See ECF No. 22, Ex. 83 (ECF No. 43-9). 57 See Vasquez v. Hillery, 474 U.S. 254, 260 (1986). 1 I FURTHER ORDER that the respondents will until December 1, 2021 to file and serve answer, which must comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Lyons will have 30 days from the date on which the answer is served to file a reply. 5 DATED this 23rd day of September, 2021. 6 Lo 4 ANDREW P.GORDON sits g UNITED STATES DISTRICT JUDGE 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 12