Glover v. Reubart ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 SHAWN GLOVER, JR., Case No. 3:22-cv-00207-MMD-CSD 7 Petitioner, ORDER v. 8 WARDEN REUBART, et al., 9 Respondents. 10 11 I. SUMMARY1 12 Petitioner Shawn Glover, Jr., a Nevada state prisoner, filed an amended petition 13 for Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 23 (“Amended Petition”).) 14 Before the Court is Respondents’ Motion to Dismiss. (ECF No. 29 (“Motion”).) For the 15 reasons discussed below, the Motion is denied. 16 II. BACKGROUND 17 Petitioner challenges a conviction and sentence imposed by the Eighth Judicial 18 District Court for Clark County. Following a jury trial, the state court entered a judgment 19 of conviction for first degree murder with use of a deadly weapon, assault with a deadly 20 weapon, and discharge of a firearm from or within structure or vehicle and sentenced 21 Petitioner to a term of life without the possibility of parole. Petitioner appealed and the 22 Nevada Supreme Court affirmed the judgment of conviction. 23 On September 14, 2020, Petitioner filed a state habeas petition seeking post- 24 conviction relief. The state district court denied Petitioner’s habeas petition. The Nevada 25 Court of Appeals affirmed the denial of the state habeas petition. Petitioner initiated this 26 federal habeas action. (ECF No. 1-1.) Following the appointment of counsel, Petitioner 27 filed his Amended Petition raising five grounds for relief. (ECF No. 23.) Respondents 28 1 move to dismiss Ground Five as unexhausted and argue that the amended petition should 2 be dismissed as a mixed petition. (ECF No. 29 at 3-5.) 3 III. DISCUSSION 4 A. Exhaustion 5 A state prisoner first must exhaust state court remedies on a habeas claim before 6 presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This exhaustion 7 requirement ensures that state courts, as a matter of comity, will have the first opportunity 8 to address and correct alleged violations of federal constitutional guarantees. See 9 Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). “A petitioner has exhausted his 10 federal claims when he has fully and fairly presented them to the state courts.” Woods v. 11 Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 12 844-45 (1999). To satisfy the exhaustion requirement, a claim must have been raised 13 through one complete round of either direct appeal or collateral proceedings to the highest 14 state court level of review available. See O’Sullivan, 526 U.S. at 844-45; Peterson v. 15 Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc). A properly exhausted claim 16 “‘must include reference to a specific federal constitutional guarantee, as well as a 17 statement of the facts that entitle the petitioner to relief.’” Woods, 764 F.3d at 1129 18 (quoting Gray v. Netherland, 518 U.S. 152, 162-63 (1996)). See also Castillo v. 19 McFadden, 399 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both the 20 operative facts and federal legal theory upon which a claim is based). 21 B. Technical Exhaustion and Anticipatory Default 22 Petitioner acknowledges that Ground Five was not presented to the state courts 23 but argues the claim is technically exhausted as he can demonstrate cause and prejudice 24 under Martinez v. Ryan, 566 U.S. 1 (2012), to overcome the procedural default. A federal 25 court need not dismiss a claim on exhaustion grounds if it is clear that the state court 26 would find the claim procedurally barred. See Castille v. Peoples, 489 U.S. 346, 351 27 (1989). See also Dickens v. Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) (en banc) (“An 28 unexhausted claim will be procedurally defaulted, if state procedural rules would now bar 1 the petitioner from bringing the claim in state court.”). A claim may be considered 2 procedurally defaulted if “it is clear that the state court would hold the claim procedurally 3 barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). Where a petitioner has 4 “procedurally defaulted” a claim, federal review is barred unless he “can demonstrate 5 cause for the default and actual prejudice as a result of the alleged violation of federal 6 law.” Coleman, 501 U.S. at 750. 7 “Generally, post-conviction counsel’s ineffectiveness does not qualify as cause to 8 excuse a procedural default.” Ramirez v. Ryan, 937 F.3d 1230, 1241 (9th Cir. 9 2019) (citing Coleman, 501 U.S. at 754-55). However, in Martinez, the Supreme Court 10 created a narrow exception to the general rule that errors of post-conviction counsel 11 cannot provide cause for a procedural default. See 566 U.S. at 16-17. “Under Martinez, 12 the procedural default of a substantial claim of ineffective assistance of trial counsel is 13 excused, if state law requires that all claims be brought in the initial collateral review 14 proceeding . . . and if in that proceeding there was no counsel or counsel was 15 ineffective.” Ramirez, 937 F.3d at 1241 (citing Martinez, 566 U.S. at 17). Nevada law 16 requires prisoners to raise ineffective assistance of counsel (“IAC”) claims for the first time 17 in a state petition seeking post-conviction review, which is the initial collateral review 18 proceeding for the purposes of applying Martinez. See Rodney v. Filson, 916 F.3d 1254, 19 1259-60 (9th Cir. 2019). 20 To establish cause and prejudice to excuse the procedural default of a trial-level 21 IAC claim under Martinez, a petitioner must show that: 22 (1) post-conviction counsel performed deficiently; (2) there was a reasonable probability that, absent the deficient performance, the 23 result of the post-conviction proceedings would have been different, 24 and (3) the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate 25 that the claim has some merit. 26 Ramirez, 937 F.3d at 1242 (internal quotation omitted). The first and second “cause” 27 prongs of the Martinez test are derived from Strickland v. Washington, 466 U.S. 668 28 (1984). See Ramirez, 937 F.3d at 1241. The Court’s determination of the second prong— 1 whether there was a reasonable probability that the result of the post-conviction 2 proceedings would be different—“is necessarily connected to the strength of the 3 argument that trial counsel’s assistance was ineffective.” Id. (quoting Clabourne v. Ryan, 4 745 F.3d 362, 377 (9th Cir. 2014), overruled on other grounds by McKinney v. Ryan, 813 5 F.3d 798, 819 (9th Cir. 2015) (en banc)). The third “prejudice” prong directs courts to 6 assess the merits of the underlying IAC claim. See id. A procedural default will not be 7 excused if the underlying IAC claim “is insubstantial,” i.e., it lacks merit or is “wholly 8 without factual support.” Id. (quoting Martinez, 566 U.S. at 14-16). 9 Here, it is clear that Petitioner would face multiple procedural bars if he were to 10 return to state court with his unexhausted claims. See, e.g., NRS §§ 34.726, 34.810. 11 Petitioner advances only Martinez as a basis for excusing the anticipatory default of his 12 ineffective assistance of counsel claim. The Court thus reads Petitioner’s opposition as a 13 concession that the only basis for cause as to any of the unexhausted ineffective 14 assistance of trial counsel claims would be Martinez, and will consider Ground Five 15 technically exhausted on that basis. 16 The Court defers ruling on whether Ground Five is procedurally defaulted given 17 the fact-intensive nature of the claim and Petitioner’s cause and prejudice arguments. 18 The Court finds that these questions are inextricably intertwined with the merits of the 19 claims themselves. Accordingly, the Court will defer a determination on whether Petitioner 20 can demonstrate cause and prejudice until the time of merits determination. The motion 21 to dismiss is denied. Respondents may renew the procedural default argument as to 22 Ground Five in their answer. 23 IV. CONCLUSION 24 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 29) is denied. 25 It is further ordered that the Court defers consideration of whether Petitioner can 26 demonstrate cause and prejudice under Martinez v. Ryan, 566 U.S. 1 (2012), to 27 overcome the procedural default of Ground Five until the time of merits review. 28 Respondents may reassert the procedural default arguments with respect to those claims 1 || in their answer. 2 It is furthered ordered that within 60 days of entry of this order, Respondents must 3 || file an answer addressing all claims in the First Amended Petition for Writ of Habeas 4 || Corpus and also addressing whether Ground Five is barred by procedural default under 5 || federal law. 6 It is further ordered that Petitioner will have 60 days from service of the answer 7 || within which to file a reply. 8 DATED THIS 26" Day of July 2024. 10 MIRANDAM.DU. 14 CHIEF UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28