Taukitoku v. Filson ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 SAMISONI TAUKITOKU, Case No. 3:16-cv-00762-HDM-CSD 6 Petitioner, v. ORDER 7 WARDEN FILSON, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Respondents’ Motion 11 to Dismiss (ECF No. 85). Also before the Court is Petitioner 12 Samisoni Taukitoku’s Motion to Strike Exhibit (ECF No. 89) and 13 Motion for Leave to File Sur-Reply (ECF No. 98). For the reasons 14 discussed below, Respondents’ Motion to Dismiss (ECF No. 85) is 15 denied, Petitioner Taukitoku’s Motion to Strike Exhibit (ECF No. 16 89) is granted, and his Motion for Leave to File Sur-Reply (ECF 17 No. 98) is denied. 18 I. Background 19 Taukitoku challenges a 2009 state court judgment of 20 conviction for three counts of first-degree murder with use of a 21 deadly weapon and four counts of assault with use of a deadly 22 weapon. Taukitoku was sentenced to three consecutive sentences of 23 life imprisonment without the possibility of parole and four terms 24 of 28 to 72 months for the assault charges, running concurrent 25 with one another but consecutive to the life sentences. 26 On March 10, 2010, the Nevada Supreme Court affirmed 27 Taukitoku’s conviction. (ECF No. 75-5.) On December 29, 2010, 28 Taukitoku filed a state habeas petition. (ECF No. 75-21.) Following 1 appointment of counsel, Taukitoku filed a supplemental state 2 habeas petition. (ECF No. 76-1.) Following an evidentiary hearing 3 wherein Taukitoku’s trial counsel and appellate counsel testified, 4 the state court denied his state habeas petition. (ECF No. 77-2.) 5 The Nevada Supreme Court affirmed the denial of relief. (ECF No. 6 77-24.) Remittitur issued on October 12, 2016. (ECF No. 77-25.) 7 On December 26, 2016, Taukitoku initiated this federal 8 proceeding pro se. (ECF No. 4.) Following appointment of counsel, 9 Taukitoku filed a first amended habeas petition on April 3, 2018. 10 (ECF No. 19.) The Court granted Taukitoku’s motion for stay and 11 abeyance to exhaust his unexhausted claims in state court. (ECF 12 No. 44.) 13 On May 3, 2019, Taukitoku returned to state court and filed 14 a second state habeas petition. (ECF No. 78-1.) The state court 15 dismissed Taukitoku’s second state habeas petition as procedurally 16 barred finding Taukitoku failed to demonstrate good cause and 17 actual prejudice. (ECF No. 47-22.) The Nevada Supreme Court 18 affirmed the district court’s ruling finding Taukitoku failed to 19 establish actual innocence. (ECF no. 47-27.) 20 Upon completion of Taukitoku’s state court proceedings, the 21 Court granted Taukitoku’s motion to reopen. (ECF No. 49.) On 22 October 22, 2021, Taukitoku filed his second amended petition. 23 (ECF No. 50.) Respondents move to dismiss the second amended 24 petition as untimely and certain claims as unexhausted and/or 25 procedurally defaulted. (ECF No. 85.) Taukitoku asserts that all 26 of the claims alleged in his second amended petition relate back 27 to his timely filed pro se petition. (ECF No. 90 at 5-16.) He 28 further asserts that he can overcome the procedural default 1 arguments related to Claims 1, 2, and 8. (Id.) 2 II. Discussion 3 a. Timeliness 4 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) 5 establishes a one-year period of limitations for state prisoners 6 to file a federal habeas petition pursuant to 28 U.S.C. § 2254. 7 The one-year limitation period, i.e., 365 days, begins to run from 8 the latest of four possible triggering dates, with the most common 9 being the date on which the petitioner’s judgment of conviction 10 became final by either the conclusion of direct appellate review 11 or the expiration of the time for seeking such review. 28 U.S.C. 12 § 2244(d)(1)(A). Statutory tolling of the one-year time limitation 13 occurs while a “properly filed” state post-conviction proceeding 14 or other collateral review is pending. 28 U.S.C. § 2244(d)(2). 15 Here, the parties do not dispute that Taukitoku’s original 16 petition was timely filed. Taukitoku argues that all of the claims 17 raised in his second amended petition relate back to his timely 18 filed original petition. Respondents assert that Claims 1, 2, and 19 8 fail to relate back and should be dismissed.1 20 b. Relation Back 21 Congress has authorized amendments to habeas petitions as 22 provided in the Federal Rules. Mayle v. Felix, 545 U.S. 644, 649 23 (2005)(citing 28 U.S.C. § 2242). Under Rule 15, an untimely 24 amendment properly “relates back to the date of the original 25 pleading” as long as it arises out of the same “conduct, 26 transaction, or occurrence.” Fed. R. Civ. P. 15(c). For habeas 27 1 In their reply, Respondents withdraw their argument that Claims 28 1 petitions, “relation back depends on the existence of a common 2 core of operative facts uniting the original and newly asserted 3 claims.” Mayle, 545 U.S. at 659. New claims in an amended habeas 4 petition do not arise out of “the same conduct, transaction or 5 occurrence” as prior claims merely because they challenge the same 6 trial, conviction, or sentence. Mayle, 545 U.S. at 661;Hebner v. 7 McGrath, 543 F.3d 1133, 1134 (9th Cir. 2008)(“It is not enough 8 that the new argument pertains to the same trial, conviction, or 9 sentence.”). Rather, to properly relate back, a new claim must 10 arise from the same collection of facts alleged in the earlier 11 petition. Mayle, 545 U.S. at 661; Schneider v. McDaniel, 674 F.3d 12 1144, 1151 (9th Cir. 2012)(holding that one shared fact in two 13 divergent legal theories was “not sufficient to conclude that they 14 arise out of a common core of operative facts”). An amended habeas 15 petition “does not relate back (and thereby escape AEDPA’s one- 16 year time limit) when it asserts a new ground for relief supported 17 by facts that differ in both time and type” from those alleged in 18 the timely petition. Mayle, 545 U.S. at 650. 19 Presenting a claim that trial counsel rendered ineffective assistance because he failed to establish a 20 particular defense cannot preserve for the petitioner any claim of ineffective assistance based on failure to 21 establish a defense that the petitioner might later discover. Such a holding would, as the district court 22 put it, stand Mayle on its head. 23 Schneider v. McDaniel, 674 F.3d 1144, 1152 (9th Cir. 2012). 24 “[T]he ‘time and type’ language in Mayle refers not to the 25 claims, or grounds for relief. Rather, it refers to the facts that 26 support those grounds.” Ha Van Nguyen v. Curry, 736 F.3d 1287, 27 1297 (9th Cir. 2013). 28 /// 1 i. Claim 1 2 In Claim 1, Taukitoku alleges that trial counsel rendered 3 ineffective assistance for failure to investigate the case. (ECF 4 No. 50 at 13-20.) This claim relates back to Ground 7 of 5 Taukitoku’s original petition that alleges, inter alia, that 6 counsel failed to “properly investigate all witness statements in 7 the discovery” and that counsel was “unprepared” for trial because 8 she failed to investigate the case. (ECF 1-1 at 22.) 9 In this regard, the Court is not persuaded by the argument 10 that the operative facts of the second amended petition 11 fundamentally alters the common core of operative facts on which 12 the amended claim rests. Both are ineffective assistance of counsel 13 (“IAC”) claims based on trial counsel’s failure to investigate, 14 and specifically, a failure to investigate witnesses. The legal 15 theory is the same and the counseled Claim 1 merely “expands or 16 modifies the facts alleged in the earlier pleading, restates the 17 original claim with greater particularity, or amplifies the 18 details of the transaction alleged in the preceding pleading.” 19 Ross v. Williams, 950 F.3d 1160, 1168 (9th Cir. 2020)(citing 6A 20 Charles Alan Wright & Arthur R. Miller, Federal Practice and 21 Procedure § 1497 (3d ed. 2019)(internal brackets and quotation 22 marks omitted)). 23 Applying the liberal construction accorded to pro se filings 24 under the governing law to the fullest possible extent, the Court 25 is persuaded that Claim 1 relates back to Ground 7 of the pro se 26 petition. Accordingly, Claim 1 is timely. 27 ii. Claim 2 28 In Claim 2, Taukitoku alleges that he was denied his right to 1 due process and a fair trial when the trial court erroneously 2 denied a request for continuance. (ECF No. 50 at 21-23.) Taukitoku 3 argues that this claim relates back to Ground 3 of his pro se, 4 original petition. The Court agrees. Ground 3 also alleges that 5 the failure to grant a continuance violated his right to a fair 6 trial and due process and refers to the CDs turned over to defense 7 10 days before trial. Claim 2 relates back to the filing of the 8 original pro se petition and is not barred by the statute of 9 limitations. 10 iii. Claim 8 11 In Claim 8, Taukitoku alleges denial of his right to due 12 process, fair trial, and equal protection given the cumulative 13 errors during his trial. (ECF No. 50 at 38-39.) The Court 14 determines that this cumulative error claim relates back to the 15 original petition and is not barred by the statute of limitations 16 to the extent that any of the constituent claims upon which it is 17 based relate back and are not barred. Claim 8 is timely. 18 c. Exhaustion 19 A state prisoner first must exhaust state court remedies on 20 a habeas claim before presenting that claim to the federal courts. 21 28 U.S.C. § 2254(b)(1)(A). This exhaustion requirement ensures 22 that the state courts, as a matter of comity, will have the first 23 opportunity to address and correct alleged violations of federal 24 constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730– 25 31 (1991). “A petitioner has exhausted his federal claims when he 26 has fully and fairly presented them to the state courts.” Woods v. 27 Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan 28 v. Boerckel, 526 U.S. 838, 844–45 (1999). To satisfy the exhaustion 1 requirement, a claim must have been raised through one complete 2 round of either direct appeal or collateral proceedings to the 3 highest state court level of review available. O’Sullivan, 526 4 U.S. at 844–45;Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 5 2003)(en banc). 6 A properly exhausted claim “‘must include reference to a 7 specific federal constitutional guarantee, as well as a statement 8 of the facts that entitle the petitioner to relief.’” Woods, 764 9 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 10 (1996));Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005) 11 (fair presentation requires both the operative facts and federal 12 legal theory upon which a claim is based). 13 A state appellate court decision on the merits of a claim of 14 course exhausts the claim. E.g., Comstock v. Humphries, 786 F.3d 15 701, 707 (9th Cir. 2015). “In the exhaustion context, the Supreme 16 Court has admonished lower courts that the complete exhaustion 17 requirement is not intended to ‘trap the unwary pro se prisoner’.” 18 Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008)(quoting 19 Slack v. McDaniel, 529 U.S. 473, 487 (2000)(rejecting argument 20 that petitioner should be limited to claims in an initial federal 21 petition after returning to federal court from state exhaustion 22 proceedings)). 23 i. Claim 4 24 Claim 4 alleges that trial counsel rendered ineffective 25 assistance for failure to object to the prosecutor’s 26 characterization of Taukitoku as an “alpha male.” (ECF No. 50 at 27 27.) Respondents contend that Claim 4 is unexhausted because 28 Taukitoku argued that appellate counsel rendered ineffective 1 assistance for failure to object to prosecution characterization 2 and now raises a different claim that trial counsel failed to 3 object. The Court finds, upon review of the state court record, 4 that Claim 4 is exhausted. Although the heading of the claim 5 alleged in Taukitoku’s appellate brief refers to appellate 6 counsel, he alleges that he was “denied his right to effective 7 assistance of trail [sic] counsel” and that “[c]ounsel failed to 8 object to the Prosecutor…” (ECF No. 77-17 at 26.) The Court finds 9 Claim 4 was fairly presented to the state appellate court and is 10 therefore exhausted. 11 d. Procedural Default 12 i. Claim 1 13 Taukitoku argues that he can demonstrate cause and prejudice 14 under Martinez v. Ryan, 566 U.S. 1 (2012), to overcome the 15 procedural default of Claim 1. (ECF No. 90 at 16.) Taukitoku raised 16 this claim in his second state habeas petition and the state court 17 dismissed the claim as procedurally defaulted. (Id.) Where a 18 petitioner has “procedurally defaulted” a claim, federal review is 19 barred unless he “can demonstrate cause for the default and actual 20 prejudice as a result of the alleged violation of federal 21 law.” Coleman, 501 U.S. at 750. 22 “Generally, post-conviction counsel’s ineffectiveness does 23 not qualify as cause to excuse a procedural default.” Ramirez v. 24 Ryan, 937 F.3d 1230, 1241 (9th Cir. 2019) (citing Coleman, 501 25 U.S. at 754-55). However, in Martinez, the Supreme Court created 26 a narrow exception to the general rule that errors of post- 27 conviction counsel cannot provide cause for a procedural 28 default. See 566 U.S. at 16-17. “Under Martinez, the procedural 1 default of a substantial claim of ineffective assistance of trial 2 counsel is excused, if state law requires that all claims be 3 brought in the initial collateral review proceeding ... and if in 4 that proceeding there was no counsel or counsel was 5 ineffective.” Ramirez, 937 F.3d at 1241 (citing Martinez, 566 U.S. 6 at 17). Nevada law requires prisoners to raise ineffective 7 assistance of counsel (“IAC”) claims for the first time in a state 8 petition seeking post-conviction review, which is the initial 9 collateral review proceeding for the purposes of applying 10 the Martinez rule.2 See Rodney v. Filson, 916 F.3d 1254, 1259-60 11 (9th Cir. 2019). 12 To establish cause and prejudice to excuse the procedural 13 default of a trial-level IAC claim under Martinez, a petitioner 14 must show that: 15 (1) post-conviction counsel performed deficiently; (2) there was a reasonable probability that, absent the 16 deficient performance, the result of the post- 17 conviction proceedings would have been different, and (3) the underlying ineffective-assistance-of- 18 trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the 19 claim has some merit. 20 Ramirez, 937 F.3d at 1242 (internal quotation omitted). The first 21 and second “cause” prongs of the Martinez test are derived 22 from Strickland v. Washington, 466 U.S. 668 (1984). See Ramirez, 23 937 F.3d at 1241. The Court’s determination of the second prong— 24 2 The Nevada Supreme Court does not recognize Martinez as cause to 25 overcome a state procedural bar pursuant to Nevada law. Brown v. McDaniel, 130 Nev. 565, 571–76, 331 P.3d 867, 871–75 (2014) (en 26 banc). Thus, a Nevada habeas petitioner who relies on Martinez— and only Martinez—as a basis for overcoming a state procedural bar 27 on an unexhausted claim can successfully argue that the state courts would hold the claim procedurally barred, but that he 28 1 whether there was a reasonable probability that the result of the 2 post-conviction proceedings would be different— “is necessarily 3 connected to the strength of the argument that trial counsel’s 4 assistance was ineffective.” Id. (quoting Clabourne v. Ryan, 745 5 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds 6 by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015) (en banc)). 7 The third “prejudice” prong directs courts to assess the merits of 8 the underlying IAC claim. See id. A procedural default will not be 9 excused if the underlying IAC claim “is insubstantial,” i.e., it 10 lacks merit or is “wholly without factual 11 support.” Id. (quoting Martinez, 566 U.S. at 14-16). 12 Here, Taukitoku advances only Martinez as a basis for 13 excusing the default of his ineffective assistance of counsel 14 claim. Respondents request that the Court defer ruling on whether 15 Claim 1 is procedurally defaulted given the fact-intensive nature 16 of the claim. (ECF No. 97 at 7-8.) The Court agrees that these 17 questions are inextricably intertwined with the merits of the 18 claims themselves. Accordingly, the Court will defer a 19 determination on whether Taukitoku can demonstrate cause and 20 prejudice until the time of merits determination. The motion to 21 dismiss Claim 1 as procedurally defaulted is denied without 22 prejudice. Respondents may renew the procedural default argument 23 as to these claims in their answer. 24 ii. Claim 2 25 Claim 2 is barred in this federal action by the procedural 26 default doctrine, unless Taukitoku can show cause and prejudice 27 regarding the procedural default, or unless he can show that “a 28 constitutional violation has probably resulted in the conviction 1 of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 2 498 (1986). Taukitoku argues that he can overcome the procedural 3 default by showing that he is actually innocent. 4 The Court finds that the question whether Taukitoku can 5 overcome his procedural default of Claim 2 with a showing of actual 6 innocence is an issue that will be better addressed in conjunction 7 with the merits of all Taukitoku’s claims, after Respondents file 8 an answer and Taukitoku a reply. Therefore, the Court will deny 9 Respondents’ motion to dismiss based on procedural default, with 10 respect to Claim 2, without prejudice to Respondents raising 11 procedural default as a defense to Claim 2 in their answer, and 12 without prejudice to Taukitoku asserting his claim of actual 13 innocence to overcome the procedural default of that claim, in his 14 reply. 15 iii. Claim 8 16 Taukitoku alleges a cumulative error claim in Claim 8. (ECF 17 No. 50 at 37-38.) He argues that he need not overcome the 18 procedural default of Claim 8 because the Court must nonetheless 19 consider the cumulative impact of errors properly brought before 20 it. The Court agrees and denies Respondents’ motion to dismiss 21 with respect to Claim 8. See Killian v. Poole, 282 F.3d 1204, 1211 22 (th Cir. 2002)(stating that “even if no single error were 23 prejudicial, where there are several substantial errors, ‘their 24 cumulative effect may nevertheless be so prejudicial as to require 25 reversal.’”)(quoting United States v. Cruz, 82 F.3d 856, 868 (9th 26 Cir. 1996)). 27 e. Motion to Strike 28 Taukitoku moves to strike state trial exhibits 20b, 21b, and 1 22b because they were not admitted into evidence, and therefore, 2 not part of the state court record. (ECF No. 89 at 2.) Respondents 3 do not oppose Taukitoku’s motion and represent that they filed the 4 record as received without modification. (ECF No. 93.) The Court 5 grants Taukitoku’s motion to strike. The Court instructs the Clerk 6 of the Court to strike ECF No. 88-1 and instructs Respondents to 7 resubmit the exhibit with blank sheets replacing pages 98, 115, 8 and 134 (exhibits 20b, 21b, and 22b) within 14 days of entry of 9 this order. 10 f. Motion for Leave to File Sur-Reply 11 Taukitoku requests leave to file a sur-reply to Respondents’ 12 reply regarding the motion to dismiss. (ECF No. 98.) The Court 13 finds that a sur-reply is unnecessary. Accordingly, Taukitoku’s 14 motion for leave to file a sur-reply is denied. 15 IT IS THEREFORE ORDERED: 16 1. Respondents’ Motion to Dismiss (ECF No. 85) is DENIED. 17 2. The Court defers consideration of whether Petitioner can 18 demonstrate cause and prejudice under Martinez v. Ryan, 19 566 U.S. 1 (2012), to overcome procedural default of Claim 20 1 and whether Petitioner can overcome procedural default 21 of Claim 2 with a showing of actual innocence until the 22 time of merits review. Respondents may reassert the 23 procedural default arguments with respect to those claims 24 in their answer. 25 3. Within 60 days of entry of this order, Respondents must 26 file an answer addressing all claims in the second amended 27 petition for writ of habeas corpus and also addressing 28 whether Claims 1 and 2 are barred by procedural default. 1 4. Petitioner Samisoni Taukitoku’s Motion to Strike (ECF No. 2 89) is GRANTED. 3 5. The Clerk of Court is instructed to strike ECF No. 88-1. 4 Within 14 days of entry of this order, Respondents are 5 instructed to resubmit the exhibit with blank sheets 6 replacing pages 98, 115, and 134 (exhibits 20b, 21b, and 7 22b). 8 6. Petitioner Samisoni Taukitoku’s Motion for Leave to File 9 Sur-Reply (ECF No. 98) is DENIED. 10 DATED: this 8th day of May, 2023. 11 12 Pbvasef” 2 7 *KAL> HOWARD D. MCKIBBEN 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28