Hayes v. Hutchings ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 James H. Hayes, Case No.: 2:21-cv-02267-APG-DJA 4 Petitioner Order Granting in Part Motion to Dismiss 5 v. [ECF No. 44] 6 William Hutchings, et al., 7 Respondents 8 9 In his 28 U.S.C. § 2254 petition for a writ of habeas corpus James H. Hayes challenges 10 his conviction after pleading guilty to attempted grand larceny. ECF No. 22. The respondents 11 move to dismiss the petition because it contains grounds that are unexhausted, procedurally 12 defaulted, or non-cognizable. ECF No. 44. Several grounds are procedurally barred, so I grant 13 the motion to dismiss in part. 14 I. Background 15 In November 2018, Hayes pleaded guilty under Alford1 to attempted grand larceny in the 16 Eighth Judicial District Court (Clark County) Nevada. Exh. 105.2 The charges stemmed from an 17 April 2013 incident where the victim, who was staying at the Excalibur Hotel in Las Vegas, 18 awoke to see Hayes going through the belongings of the people staying in the room. The victim 19 blocked Hayes from exiting and took a picture of Hayes’ Nevada identification. Hayes 20 eventually fled and the occupants realized they were missing $130.00. Three years later in April 21 2016, police responded to a robbery at Harrah’s casino and discovered Hayes. He had 22 23 1 North Carolina v. Alford, 400 U.S. 25 (1970). 24 2 Exhibits referenced in this order are exhibits to the respondents’ motion to dismiss, ECF No. 44, and are 1 outstanding warrants for this offense, so he was arrested. See Exh. 27 at 5-10. The state district 2 court adjudicated Hayes under the habitual criminal statute and sentenced him to 60 to 174 3 months. Exh. 113. Judgment of conviction was entered on March 12, 2019. Exh. 114. The 4 Nevada Court of Appeals affirmed his conviction and affirmed the denial of his state habeas 5 corpus petition. Exhs. 189, 392. 6 Hayes dispatched his federal habeas petition for filing in October 2021. ECF No. 7. The 7 court granted his motion for appointment of counsel. ECF No. 14. He filed an amended petition 8 setting forth six grounds for relief: 9 Ground One: Hayes is actually innocent of the habitual criminal adjudication. 10 Ground Two: The trial court failed to comply with procedural requirements when it adjudicated Hayes a habitual criminal in violation of his Fifth and Fourteenth 11 Amendment due process rights. 12 Ground Three: The State failed to give Hayes reasonable notice and opportunity to be heard regarding his habitual criminal adjudication in violation of his Fifth, Sixth, and 13 Fourteenth Amendment due process rights. 14 Ground Four: Hayes did not enter his plea pursuant to Alford knowingly, intelligently, and voluntarily, in violation of his due process rights because: 15 (A) it was not accompanied by a factual finding of guilt; 16 (B) his plea counsel was ineffective for (i) failing to advise Hayes of the impact of his 17 prior convictions on the applicability of habitual criminal adjudication and (ii) failing to file a state pretrial habeas petition challenging the justice court’s probable cause 18 determination at the preliminary hearing. 19 Ground Five: Trial counsel was ineffective for (A) failing to investigate Hayes’ criminal record and challenge the habitual criminal adjudication; and (B) failing to move to 20 withdraw Hayes’ plea in light of the State’s breach of the plea agreement. 21 Ground Six: Hayes’ appellate counsel rendered ineffective assistance. 22 ECF No. 22 at 11-36. 23 The respondents move to dismiss the petition as unexhausted, procedurally defaulted, or 24 noncognizable. ECF No. 44. 1 II. Motion to Dismiss -- Legal Standards & Analysis 2 a. Exhaustion A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner 3 has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 4 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on 5 each of his claims before he presents those claims in a federal habeas petition. O’Sullivan v. 6 Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A 7 claim remains unexhausted until the petitioner has given the highest available state court the 8 opportunity to consider the claim through direct appeal or state collateral review proceedings. 9 See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 10 376 (9th Cir. 1981). 11 A habeas petitioner must “present the state courts with the same claim he urges upon the 12 federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal constitutional 13 implications of a claim, not just issues of state law, must have been raised in the state court to 14 achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 15 404 U.S. at 276)). A claim is not exhausted unless the petitioner has presented to the state court 16 the same operative facts and legal theory upon which his federal habeas claim is based. Bland v. 17 California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The exhaustion 18 requirement is not met when the petitioner presents to the federal court facts or evidence which 19 place the claim in a significantly different posture than it was in the state courts, or where 20 different facts are presented at the federal level to support the same theory. See Nevius v. 21 Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th 22 Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev. 1984). 23 24 1 A petitioner must make “a fair presentation” of their federal claims to the state courts. 2 “Fair presentation requires that a state’s highest court has a ‘fair opportunity to consider [an 3 appellant’s constitutional claim] and to correct that asserted constitutional defect.’” Lounsbury v. 4 Thompson, 374 F.3d 785, 787-88 (9th Cir. 2004) (citations omitted). Claims presented in a 5 procedurally improper manner such that the state appellate court did not have a fair opportunity 6 to consider their merits are unexhausted. See Castille v. Peoples, 489 U.S. 346, 351 (1989) 7 (holding that a petitioner cannot achieve exhaustion procedurally deficient or improper means); 8 McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 1986) (stating that a petitioner exhausts a 9 claim only when they presented it in a way that provides the state appellate courts with an 10 opportunity to rule on its merits). 11 b. Procedural Default 12 “Procedural default” refers to the situation where a petitioner in fact presented a claim to 13 the state courts, but the state courts disposed of the claim on procedural grounds, instead of on 14 the merits. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). A federal court will not review 15 a claim for habeas corpus relief if the decision of the state court regarding that claim rested on a 16 state law ground that is independent of the federal question and adequate to support the 17 judgment. Id. 18 The Coleman Court explained the effect of a procedural default: 19 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas 20 review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or 21 demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 22 23 24 1 Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The 2 procedural default doctrine ensures that the state’s interest in correcting its own mistakes is 3 respected in all federal habeas cases. See Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003). 4 To demonstrate cause for a procedural default, the petitioner must be able to “show that 5 some objective factor external to the defense impeded” his efforts to comply with the state 6 procedural rule. Murray, 477 U.S. at 488 (emphasis added). For cause to exist, the external 7 impediment must have prevented the petitioner from raising the claim. See McCleskey v. Zant, 8 499 U.S. 467, 497 (1991). 9 c. Several Grounds are Unexhausted and Procedurally Defaulted 10 The respondents argue that all grounds except ground 5(B) are unexhausted. ECF No. 44 11 at 5-7. On direct appeal, Hayes raised a single claim—that his sentence was cruel and unusual 12 because it was disproportionate to his crime. See Exhs. 139, 189. He raised several claims, 13 including several claims of ineffective assistance of counsel, in his first state postconviction 14 habeas corpus petition and a motion to modify/correct an illegal sentence. See Exhs. 295, 392, 15 439. 16 Ground 1 is exhausted. 17 Hayes asserts that he is actually innocent of habitual criminal adjudication. ECF No. 22 at 18 11-15. He did not raise a standalone claim of actual innocence when he appealed his conviction. 19 See Exhs. 139, 189. However, the gravamen of his “actual innocence” claim in federal ground 1 20 is that he lacked the requisite number of felony convictions to qualify for habitual criminal 21 status. The Nevada Court of appeals considered and rejected this claim when it affirmed the 22 denial of Hayes’ motion to modify and/or correct illegal sentence. Exh. 439 at 2-4. Ground 1, 23 therefore, is exhausted. 24 / / / / 1 Ground 5(A) is exhausted. 2 Hayes contends in ground 5(A) that trial counsel was ineffective for failing to investigate 3 Hayes’ criminal record and challenge the habitual criminal adjudication. ECF No. 22 at 30-33. 4 Hayes presented the same operative factual basis and legal theory to the Nevada Court of 5 Appeals when he appealed the denial of his first state postconviction petition. Exh. 392 at 6-7. 6 Ground 5(A), therefore, is exhausted. 7 Ground 2 is unexhausted. 8 In ground 2, Hayes argues that the trial court failed to comply with procedural 9 requirements when it adjudicated Hayes a habitual criminal. ECF No. 22 at 15-17. He asserts 10 that the trial court did not weigh the appropriate factors for and against such adjudication and did 11 not make an individualized determination that habitual criminal treatment was appropriate. 12 Hayes presented this argument on appeal of the denial of his motion to modify and/or correct 13 illegal sentence. Exh. 400 at 12. The Nevada Court of Appeals held that this claim was outside 14 the scope of claims permissible in a motion to modify or correct an illegal sentence. Exh. 439 at 15 5. “Submitting a []claim to the state’s highest court in a procedural context [where] its merits 16 will not be considered” does not satisfy the fair presentation requirement for exhaustion. 17 Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994), citing Castille, 489 U.S. at 351. Ground 2, 18 therefore is unexhausted. 19 Ground 3 is unexhausted. 20 Hayes contends that the State failed to give him reasonable notice and opportunity to be 21 heard regarding his habitual criminal adjudication, in violation of his Fifth, Sixth, and Fourteenth 22 Amendment due process rights. ECF No. 22 at 18-19. Hayes did raise a claim that appellate 23 counsel was ineffective for failing to argue that the State did not properly file a notice of intent to 24 request habitual criminal treatment in his appeal of the denial of his state postconviction petition. 1 See Exh. 392 at 8. But he did not raise the underlying substantive claim that the State did not 2 properly notify him. See Exhs. 139, 189. In the appeal of the denial of his motion to 3 modify/correct an illegal sentence, Hayes did argue that the State did not properly notify him. 4 Exh. 400 at 13. But as with federal ground two, the Nevada Court of Appeals held that this 5 claim was outside the scope of claims permissible in a motion to modify or correct an illegal 6 sentence. Exh. 439 at 5. It was not presented to the state appellate court in a procedural context 7 where its merits would have been considered, and therefore, ground 3 is unexhausted. See Exhs. 8 139, 189, 392, 439. 9 Ground 4(A) is unexhausted. 10 Hayes contends in ground 4(A) that he did not enter his Alford plea knowingly, 11 intelligently, and voluntarily, in violation of his due process rights because it was not 12 accompanied by a factual finding of guilt. ECF No. 22 at 20-23. Hayes did not present this claim 13 to the state appellate courts. See Exh. 392 at 9. Ground 4(A) is unexhausted. 14 Ground 4(B) is partially exhausted. 15 In ground 4(B) Hayes asserts that he did not enter his plea knowingly because his counsel 16 was ineffective for (i) failing to advise Hayes of the impact of his prior convictions on the 17 applicability of habitual criminal adjudication and (ii) failing to file a state pretrial habeas 18 petition challenging the justice court’s probable cause determination at the preliminary hearing. 19 ECF No. 22 at 23-29. Hayes fairly presented ground 4(B)(i) to the Nevada Court of Appeals. 20 See Exh. 392 at 4-5. Hayes did not, however, present federal ground 4(B)(ii) to the state 21 appellate courts. Ground 4(B)(i) is exhausted. Ground 4(B)(ii) is unexhausted. 22 Ground 6 is also exhausted in part. 23 Hayes argues that his appellate counsel rendered ineffective assistance for failing to raise 24 federal grounds 1-3 on direct appeal. ECF No. 22 at 34-36. In his state postconviction litigation, 1 Hayes did not present an argument that appellate counsel failed to raise the claim that he was 2 actually innocent of habitual criminal adjudication (federal ground 1). See Exh. 392. He also did 3 not present the claim that appellate counsel failed to argue that the trial court failed to comply 4 with procedural requirements when it adjudicated Hayes a habitual criminal (federal ground 2). 5 Hayes did, however, fairly exhaust the claim that appellate counsel failed to argue that the State 6 failed to give him reasonable notice and opportunity to be heard regarding his habitual criminal 7 adjudication (ground 3). See id. at 8. Accordingly, the only claim that is exhausted in ground 6 is 8 the claim that appellate counsel failed to argue that the State failed to give him reasonable notice 9 and opportunity to be heard regarding his habitual criminal adjudication. 10 Grounds 2, 3, 4(A), 4(B)(ii) and part of ground 6 are dismissed as procedurally barred. 11 The respondents next argue that the unexhausted grounds should be deemed procedurally 12 defaulted. ECF No. 44 at 7-8. If Hayes were to attempt to return to state court to exhaust 13 grounds 2, 3, 4(A), 4(B)(ii) and most of ground 6, the state courts would dismiss on independent 14 and adequate state-law grounds, i.e., the courts would apply the mandatory state procedural bars 15 and dismiss the claim.3 “An unexhausted claim will be procedurally defaulted, if state 16 procedural rules would now bar the petitioner from bringing the claim in state court.” Dickens v. 17 Ryan, 740 F.3d 1302, 1317 (9th Cir. 2014) Thus, grounds 2, 3, 4(A), 4(B)(ii), and ground 6 (in 18 part) are technically exhausted, but procedurally defaulted. See Woodford v. Ngo, 548 U.S. 81 19 (2002) (state court remedies are “exhausted” when they are “no longer available, regardless of 20 the reason for their unavailability”). In his opposition to the motion to dismiss, Hayes merely 21 3 Independent and adequate state law grounds include applying a time-bar and rejecting a petition as 22 second and successive or an abuse of the writ. See, e.g., NRS 34.726; NRS 34.800; NRS 34.810; Vang v. Nevada, 329 F.3d 1069, 1073-75 (9th Cir. 2003) (“[a] state procedural rule is ‘adequate’ if it is ‘clear, 23 consistently applied, and well-established at the time of the purported default . . . . [a] state procedural bar is ‘independent’ if the state court explicitly invokes the procedural rule as a separate basis for its 24 decision”); see also Bargas v. Burns, 179 F.3d 1207, 1210-12 (9th Cir. 1999). 1 doubles down on his assertion that these grounds are exhausted. ECF No. 74 at 21-23. He does 2 not argue that he can demonstrate good cause and actual prejudice to excuse the procedural 3 default of any of the claims. Accordingly, I dismiss grounds 2, 3, 4(A), and 4(B)(ii) as 4 procedurally barred from federal review. The claim in ground 6 that appellate counsel failed to 5 argue that the State failed to give Hayes reasonable notice and opportunity to be heard regarding 6 his habitual criminal adjudication is exhausted. The other claims raised in ground 6 (that 7 appellate counsel failed to raise federal grounds 1 and 2) are technically exhausted and dismissed 8 as procedurally barred from federal review. 9 d. Grounds 4(B)(i) and 5(A) are not Barred by Tollett 10 “[W]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty 11 of the offense with which he is charged, he may not thereafter raise independent claims relating 12 to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” 13 Tollett v. Henderson, 411 U.S. 258, 267 (1973). A petitioner may only attack the voluntary and 14 intelligent character of the plea. Id. When a petitioner has entered a guilty plea then 15 subsequently seeks to claim his counsel rendered ineffective assistance, such claim is limited to 16 the allegation that defense counsel was ineffective in advising the petitioner to plead guilty. 17 Fairbank v. Ayers, 650 F.3d 1243, 1254–1255 (9th Cir. 2011) (citing Tollett, 411 U.S. at 266– 18 267, and explaining that because a guilty plea precludes a claim of constitutional violations prior 19 to the plea, petitioner’s sole avenue for relief is demonstrating that advice of counsel to plead 20 guilty was deficient); Lambert v. Blodgett, 393 F.3d 943, 979 (9th Cir. 2004). 21 In ground 4(B)(i), Hayes claims that he did not enter his plea knowingly because his 22 counsel was ineffective for failing to advise him of the impact of his prior convictions on the 23 applicability of habitual criminal adjudication. ECF No. 22 at 23-25. Hayes contends in ground 24 5(A) that trial counsel was ineffective for failing to investigate his criminal record and challenge 1 the habitual criminal adjudication. ECF No. 22 at 30-33. These closely related claims essentially 2 challenge that the plea was not entered voluntarily and intelligently because defense counsel 3 ineffectively advised Hayes to plead guilty. They are not subject to dismissal under Tollett. 4 In sum, grounds 2, 3, 4(A), 4(B)(ii), and the claims in ground 6 that appellate counsel 5 failed to raise federal grounds 1 and 2 on direct appeal are dismissed as procedurally barred. I 6 will adjudicate the merits of grounds 1, 4(B)(i), 5(A), 5(B),4 and the remaining claim in ground 6 7 that appellate counsel failed to argue that the State failed to give Hayes reasonable notice and 8 opportunity to be heard regarding his habitual criminal enhancement. 9 III. Motion for Leave to File Exhibit Under Seal 10 The respondents have also filed a motion for leave to file an exhibit under seal. ECF No. 11 63. While there is a presumption favoring public access to judicial filings and documents, see 12 Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978), a party seeking to seal a 13 judicial record may overcome the presumption by demonstrating “compelling reasons” that 14 outweigh the public policies favoring disclosure, Kamakana v. City and County of Honolulu, 447 15 F.3d 1172, 1178-79 (9th Cir. 2006) (citations omitted). In general, “compelling reasons” exist 16 where the records may be used for improper purposes. Id. at 1179 (citing Nixon, 435 U.S. at 17 598). Here, the respondents ask to file Hayes’ presentence investigation report (PSI) under seal 18 because it is confidential under state law, was sealed in state court and never made a part of the 19 public record, and contains sensitive information. The respondents have demonstrated 20 compelling reasons to file the PSR under seal, so I grant the motion and the PSI will remain 21 under seal. 22 / / / / 23 24 4 1 2 IV. Conclusion 3 I THEREFORE ORDER that the respondents’ motion to dismiss [ECF No. 44] is 4|| granted in part as follows: 5 e Grounds 1, 4(B)(1), and 5(A) are exhausted 6 e The claim in ground 6 that appellate counsel failed to argue that the State failed to give Hayes reasonable notice and opportunity to be heard regarding his habitual 7 criminal adjudication is exhausted 8 e Grounds 2, 3, 4(A), 4(B)(ii) and the remainder of ground 6 are dismissed as procedurally barred from federal review 9 10 I FURTHER ORDER that the respondents have September 13, 2024 to file an answer to 11|| the petitioner’s remaining grounds for relief. The answer must contain all substantive and 12|| procedural arguments as to all surviving grounds of the petition and comply with Rule 5 of the 13|| Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. 14 I FURTHER ORDER that the petitioner has 45 days following service of the 15|| respondents’ answer in which to file a reply. 16 I FURTHER ORDER that the respondents’ motion for leave to file exhibit under seal 17|| [ECF No. 63] is GRANTED. The exhibit will remain under seal. 18 DATED this 28th day of July, 2024. 19 20 ANDREWP.GORDON. > UNITED STATES DISTRICT JUDGE 22 23 24 11