Holman v. Johnson ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Jerry Holman, Case No.: 2:21-cv-00266-APG-NJK 4 Petitioner Order Denying Motion to Dismiss 5 v. [ECF No. 46] 6 Calvin Johnson, et al., 7 Respondents 8 9 In his 28 U.S.C. § 2254 petition for a writ of habeas corpus Jerry Holman challenges his 10 murder conviction, alleging that his trial and appellate counsel were ineffective and that 11 insufficient evidence supported the verdict. ECF No. 44. The respondents move to dismiss his 12 insufficiency of the evidence claim (ground III) as untimely. ECF No. 46. I conclude that 13 ground III relates back to a timely-filed petition. So I deny the motion to dismiss and set a 14 briefing schedule for the answer to the second-amended petition. 15 I. Background 16 In August 2015, a jury in Eighth Judicial District Court (Clark County) Nevada convicted 17 Holman of conspiracy to commit murder and first-degree murder with use of a deadly weapon. 18 Exh. 25.1 The charges stemmed from an incident where Holman and his girlfriend, Mariah 19 Whitemagpie, had some sort of argument with the victim in front of an apartment complex in 20 Las Vegas. Cellphone video showed the victim backing away from the two as they pursued him. 21 Holman then stabbed him repeatedly. The victim was pronounced dead at a hospital. The state 22 district court sentenced Holman to life in prison without the possibility of parole. Exh. 28. 23 24 1 Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 46, and are 1 Judgment of conviction was entered on October 29, 2015. Exh. 29. The Nevada Supreme Court 2 affirmed his conviction and affirmed the denial of his state habeas corpus petition. Exhs. 44, 76. 3 Holman dispatched his federal habeas petition for filing in February 2021. ECF No. 1-1. The 4 court granted his motion for appointment of counsel. ECF No. 33. He filed a counseled, second- 5 amended petition setting forth three grounds for relief: 6 Ground I: Holman received ineffective assistance of counsel: 7 A. Trial counsel made multiple prejudicial errors during Ronald Acuna’s testimony; 8 B. Trial counsel failed to object to burden-shifting by the prosecutor; 9 C. Trial counsel’s deficient performance prejudiced Holman. 10 Ground II: Holman’s appellate counsel was ineffective for failing to argue on appeal that 11 the prosecution improperly impeached a defense witness. 12 Ground III: Holman was convicted based on insufficient evidence in violation of his due process rights. 13 ECF No. 44 at 7-17. 14 The respondents move to dismiss the petition as untimely and argue that his claim of 15 cumulative error of trial counsel is not cognizable. ECF No. 46. Holman opposed, and the 16 respondents replied. ECF Nos. 48, 51. 17 II. Motion to Dismiss -- Legal Standards & Analysis 18 Relation Back 19 The respondents argue that ground III in Holman’s second-amended petition does not 20 relate back to a timely-filed petition and should thus be dismissed as untimely. ECF No. 44 at 6- 21 9; ECF No. 51 at 2. The parties do not dispute that Holman’s original and first-amended petition 22 were timely-filed and that the second-amended petition was filed after the expiration of the 23 Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) one-year limitation period. Thus 24 the claims second-amended petition will be timely only if the new claims relate back to claims in 1 a timely-filed pleading under Rule 15(c) of the Federal Rules of Civil Procedure, on the basis 2 that the claim arises out of “the same conduct, transaction or occurrence” as a claim in the timely 3 pleading. Mayle v. Felix, 545 U.S. 644 (2005). In Mayle, the United States Supreme Court held 4 that habeas claims in an amended petition do not arise out of “the same conduct, transaction or 5 occurrence” as claims in the original petition merely because the claims all challenge the same 6 trial, conviction or sentence. 545 U.S. at 655-64. Rather, under the construction of the rule 7 approved in Mayle, Rule 15(c) permits relation back of habeas claims asserted in an amended 8 petition “only when the claims added by amendment arise from the same core facts as the timely 9 filed claims, and not when the new claims depend upon events separate in ‘both time and type’ 10 from the originally raised episodes.” 545 U.S. at 657. In this regard, the reviewing court looks to 11 “the existence of a common ‘core of operative facts’ uniting the original and newly asserted 12 claims.” A claim that merely adds “a new legal theory tied to the same operative facts as those 13 initially alleged” will relate back and be timely. 545 U.S. at 659 and n.5; Ha Van Nguyen v. 14 Curry, 736 F.3d 1287, 1297 (9th Cir. 2013). 15 Ground III relates back and is, therefore, timely. 16 Holman argues that insufficient evidence supported his conviction. ECF No. 44 at 14-17. 17 He discusses the knife, tank top, and cellphone video that were introduced as evidence at trial, as 18 well as the testimony of eyewitnesses. In his timely, first-amended petition, Holman also 19 described this evidence and challenged it as insufficient. ECF No. 9 at 12-21. The two claims 20 clearly share a common core of operative facts. Ground III relates back; thus it is timely. 21 The court declines to consider whether ground I(C) is cognizable at this time. 22 The respondents also move to dismiss Holman’s claim of cumulative error of trial 23 counsel (ground I(C)). ECF No. 46 at 10-11. They argue that whether such an ineffective 24 assistance of counsel (“IAC”) claim is cognizable under AEDPA is not “clearly established” 1} federal law by the U.S. Supreme Court. In turn, Holman points out that the Ninth Circuit has stated that “[w]hile an individual claiming IAC ‘must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,’ the court considers counsel’s conduct as a whole to determine whether it was constitutionally adequate.” 5|| Browning v. Baker, 875 F.3d 444, 471 (9™ Cir. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984). The court defers a decision on ground I(C) and will evaluate the 7|| cumulative error claim when it considers the entirety of the IAC claims in ground I. 8 TH. Conclusion 9 I THEREFORE ORDER that the respondents’ motion to dismiss [ECF No. 46] is 1Q|| denied. 11 I FURTHER ORDER that the respondents have 45 days from the date of this order to file 12|| an answer to the second-amended petition. The answer must contain all substantive and 13]| Procedural arguments as to all surviving grounds of the petition and comply with Rule 5 of the 14|| Rules Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. 15 I FURTHER ORDER that the petitioner has 45 days following service of the fespondents’ answer in which to file a reply. 17 18 DATED this 31st day of July, 2024. 19 20 EW P. GORDON UNITED STATES DISTRICT JUDGE 22 23 24