Downs v. State of Nevada ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ROBERT WILLIAM DOWNS, II, Case No. 3:22-cv-00075-ART-CLB 5 Petitioner, v. ORDER DENYING, IN PART, 6 AND GRANTING, IN PART, NETHANJAH BREITENBACH,1 et al., MOTION TO DISMISS 7 Respondents. [ECF No. 36] 8 9 10 On December 29, 2023, counseled Petitioner Robert William Downs, II, filed 11 his first-amended § 2254 petition. (ECF No. 29.) This matter comes before the 12 Court on Respondents’ motion to dismiss Downs’s first-amended petition. (ECF 13 No. 36.) Downs opposed the motion, and Respondents replied. (ECF Nos. 46, 49.) 14 For the reasons stated below, the Court denies the motion, in part, and grants 15 the motion, in part. 16 I. BACKGROUND 17 The Nevada Supreme Court described the crime, as revealed by the 18 evidence at Downs’s trial, as follows: “In 2013, a Reno police detective and a social 19 worker were sent to investigate appellant Robert Downs for reports of child abuse 20 of his girlfriend’s seven-year-old son. The child was observed to have bloody red 21 eyes and bruises all over his body.” (ECF No. 32-8 at 2.) A jury found Downs 22 guilty of first-degree kidnapping and three counts of child abuse resulting in 23 substantial bodily harm. (ECF No. 31-34.) Downs was sentenced to three 24 concurrent terms of 96 to 240 months in prison for his child abuse convictions 25 1The state corrections department’s inmate locator page states that Downs is 26 incarcerated at Lovelock Correctional Center. Nethanjah Breitenbach is the warden for that facility. At the end of this Order, this Court directs the clerk to 27 substitute Nethanjah Breitenbach as a respondent for Respondent State of Nevada under Federal Rule of Civil Procedure 25(d). 28 1 to run consecutive to his sentence of life with the possibility of parole after 5 years 2 for his first-degree kidnapping conviction. (Id.) Downs’s judgment of conviction 3 was entered on November 17, 2015. (Id.) Downs appealed, and the Nevada 4 Supreme Court affirmed on June 28, 2017. (ECF No. 32-8.) 5 Downs filed his pro se state post-conviction habeas petition on June 4, 6 2018. (ECF No. 32-17.) The state court denied Downs post-conviction relief on 7 March 23, 2020. (ECF No. 32-42.) Downs appealed, and the Nevada Supreme 8 Court affirmed on November 10, 2021. (ECF No. 33-21.) Remittitur issued on 9 January 7, 2022. (ECF No. 33-24.) 10 In his instant first-amended petition, Downs presents the following 11 grounds for relief: 12 1. There was insufficient evidence to support his first-degree kidnapping conviction. 13 2. His trial counsel was ineffective for failing to challenge the sufficiency of the evidence on the first-degree kidnapping 14 charge. 3. His trial counsel was ineffective for failing to ask the trial court 15 for a jury instruction informing the jury that to convict him of both first-degree kidnapping and child abuse, the State had to 16 show that the movement of the child required for the kidnapping charge was not incidental to the related child 17 abuse charge. 4. His trial counsel was ineffective for failing to object to 18 erroneous instructions on child abuse. 5. His trial counsel was ineffective for failing to object to Detective 19 Doser’s testimony commenting on his credibility and expressing quasi-medical opinions about the causes of the 20 victim’s injuries. 6. His trial counsel was ineffective for permitting the victim to 21 testify via Skype and for failing to effectively cross-examine the victim. 22 7a. His trial counsel was ineffective for failing to file a motion in limine or object to the State’s use of certain photographs. 23 7b. His trial counsel was ineffective for failing to interview and call certain witnesses for trial. 24 7c. His trial counsel was ineffective for failing to retain specific experts. 25 7d. His trial counsel was ineffective for failing to test items for DNA. 26 7e. His trial counsel was ineffective for failing to investigate and present a defense that his co-defendant was responsible for 27 the victim’s injuries and that his conduct did not amount to abuse. 28 8. His trial counsel was ineffective during plea negotiations. 1 statements that he made to Detective Doser and/or object to admitting the video recordings of this questioning at trial. 2 3 (ECF No. 29.) 4 II. DISCUSSION 5 Respondents argue that (1) grounds 2, 3, 4, 5, 6, 7, 8, and 9 are 6 unexhausted and (2) grounds 1, 2, 3, 4, and 6 do not relate back to Down’s timely 7 original petition and are thus untimely. (ECF No. 36.) This Court will address 8 these arguments in turn. 9 A. Exhaustion 10 A state prisoner first must exhaust state court remedies on a habeas claim 11 before presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This 12 exhaustion requirement ensures that the state courts, as a matter of comity, will 13 have the first opportunity to address and correct alleged violations of federal 14 constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). 15 “A petitioner has exhausted his federal claims when he has fully and fairly 16 presented them to the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th 17 Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999) (“Section 18 2254(c) requires only that state prisoners give state courts a fair opportunity to 19 act on their claims.”)). 20 A petitioner must present the substance of his claim to the state courts, 21 and the claim presented to the state courts must be the substantial equivalent of 22 the claim presented to the federal court. Picard v. Connor, 404 U.S. 270, 278 23 (1971). The state courts have been afforded a sufficient opportunity to hear an 24 issue when the petitioner has presented the state court with the issue’s factual 25 and legal basis. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); see also 26 Scott v. Schriro, 567 F.3d 573, 582–83 (9th Cir. 2009) (“Full and fair presentation 27 additionally requires a petitioner to present the substance of his claim to the state 28 courts, including a reference to a federal constitutional guarantee and a 1 statement of facts that entitle the petitioner to relief.”). A petitioner may 2 reformulate his claims so long as the substance of his argument remains the 3 same. Picard, 404 U.S. at 277–78. 4 In grounds 2, 3, 4, 5, 6, 7, 8, and 9, Downs argues that his trial counsel 5 was ineffective. (ECF No. 29.) Downs argues that these grounds are technically 6 exhausted but procedurally defaulted and that he can overcome the defaults 7 under Martinez v. Ryan. (ECF No. 32 at 12.) 8 A claim may be considered procedurally defaulted if “it is clear that the 9 state court would hold the claim procedurally barred.” Sandgathe v. Maass, 314 10 F.3d 371, 376 (9th Cir. 2002). Downs would face several procedural bars if he 11 were to return to state court. See, e.g., Nev. Rev. Stat. §§ 34.726 & 34.810. Nevada 12 has cause and prejudice and fundamental miscarriage of justice exceptions to its 13 procedural bars, which are substantially the same as the federal standards. If a 14 petitioner has a potentially viable cause-and-prejudice or actual-innocence 15 argument under the substantially similar federal and state standards, then that 16 petitioner cannot establish that “it is clear that the state court would hold the 17 claim procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, the 18 courts in this district have generally declined to find a claim subject to 19 anticipatory procedural default unless the petitioner represents that he would be 20 unable to establish cause and prejudice in a return to state court. In such a case, 21 the claim would generally be subject to immediate dismissal as procedurally 22 defaulted, as the petitioner would have conceded that he has no grounds for 23 exception to the procedural default in federal court. 24 A different situation is presented, however, where the Nevada state courts 25 do not recognize a potential basis to overcome the procedural default arising from 26 the violation of a state procedural rule that is recognized under federal law. In 27 Martinez v. Ryan, the Supreme Court held that the absence or inadequate 28 assistance of counsel in an initial-review collateral proceeding may be relied upon 1 to establish cause excusing the procedural default of a claim of ineffective 2 assistance of trial counsel. 566 U.S. 1, 9 (2012). The Nevada Supreme Court does 3 not recognize Martinez as cause to overcome a state procedural bar under Nevada 4 state law. Brown v. McDaniel, 331 P.3d 867, 875 (Nev. 2014). Thus, a Nevada 5 habeas petitioner who relies upon Martinez—and only Martinez—as a basis for 6 overcoming a state procedural bar on an unexhausted claim can successfully 7 argue that the state courts would hold the claim procedurally barred but that he 8 nonetheless has a potentially viable cause-and-prejudice argument under federal 9 law that would not be recognized by the state courts when applying the state 10 procedural bars. 11 Here, Downs advances only Martinez as a basis for excusing the 12 anticipatory default of grounds 2, 3, 4, 5, 6, 7, 8, and 9. (See ECF No. 46 at 4.) 13 Accordingly, the Court considers grounds 2, 3, 4, 5, 6, 7, 8, and 9 to be technically 14 exhausted and procedurally defaulted. Because the analysis of cause and 15 prejudice to overcome the procedural default of these grounds is necessarily 16 intertwined with the merits of the grounds, this Court defers a determination of 17 whether Downs can overcome the procedural default of these grounds until the 18 time of merits determination. 19 B. Relation Back 20 Respondents contend that while Downs’s original pro se federal petition 21 was timely filed, his counseled first-amended petition was untimely filed; thus, 22 grounds 1, 2, 3, 4, and 6 of his untimely first-amended petition must be 23 dismissed because they do not relate back to his timely original petition. (ECF 24 No. 36 at 9.) Downs does not dispute that his first-amended petition is untimely; 25 rather, he contends that grounds 1, 2, 3, 4, and 6 of his first-amended petition 26 relate back to his original petition. (ECF No. 46 at 17–22.) 27 A new claim in an amended petition that is filed after the expiration of the 28 Antiterrorism and Effective Death Penalty Act (“AEDPA”) one-year limitation 1 period will be timely only if the new claim relates back to a claim in a timely-filed 2 pleading on the basis that the claim arises out of “the same conduct, transaction 3 or occurrence” as a claim in the timely pleading. Mayle v. Felix, 545 U.S. 644 4 (2005). In Mayle, the United States Supreme Court held that habeas claims in an 5 amended petition do not arise out of “the same conduct, transaction or 6 occurrence” as claims in the original petition merely because the claims all 7 challenge the same trial, conviction, or sentence. Id. at 655–64. Rather, habeas 8 claims asserted in an amended petition relate back “only when the claims added 9 by amendment arise from the same core facts as the timely filed claims, and not 10 when the new claims depend upon events separate in ‘both time and type’ from 11 the originally raised episodes.” Id. at 657. In this regard, the reviewing court looks 12 to “the existence of a common ‘core of operative facts’ uniting the original and 13 newly asserted claims.” Id. at 659. A claim that merely adds “a new legal theory 14 tied to the same operative facts as those initially alleged” will relate back and be 15 timely. Id. at 659 n.5; Ha Van Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 16 2013). 17 In ground 1 of his first-amended petition, Downs alleges that there was 18 insufficient evidence to support his first-degree kidnapping conviction. (ECF No. 19 29 at 13.) Downs alleges that ground 1 of his first-amended petition relates back 20 to ground 5 of his original petition. (ECF No. 46 at 18–19.) In ground 5 of his 21 original petition, Downs alleged the following: 22 [Defense counsel] failed to research and investigate a meaningful 23 defense instead choosing to demonstrate the prosecutor’s inability to prove every aspect of the charges. Despite petitioner’s protestations, 24 defense counsel chose to forego any defense theory by making a weak and ineffective attempt to prove the prosecutor’s inability to prove 25 their case. Petitioner finally ceded to counsel’s pleas when only days away from trial start date, defense counsel had performed no 26 investigation. 27 (ECF No. 7 at 13.) This Court does not find that ground 1 of Down’s first-amended 28 1 petition relates back to ground 5 of his original petition. Ground 1 of the first- 2 amended petition varies in both time and type from ground 5 of the original 3 petition because, in general terms, ground 1 of the first-amended petition alleges 4 that the prosecution failed to prove every element of the first-degree kidnapping 5 charge whereas ground 5 of the original petition alleges that Down’s trial counsel 6 should not have argued that the prosecution failed to prove every element of the 7 charges. These opposing allegations demonstrate that these grounds do not 8 contain a common core of operative facts. Ground 1 is dismissed as untimely. 9 Similarly, in ground 2 of his first-amended petition, Downs alleges that his 10 trial counsel was ineffective for failing to challenge the sufficiency of the evidence 11 on the first-degree kidnapping charge. (ECF No. 29 at 14.) Like with ground 1, 12 Downs argues that ground 2 of his first-amended petition relates back to ground 13 5 of his original petition. (ECF No. 46 at 19.) Because ground 2 of the first- 14 amended petition and ground 5 of the original petition present opposing 15 allegations—trial counsel should have argued against the sufficiency of the 16 evidence versus trial counsel should not have argued against the sufficiency of 17 the evidence—this Court finds that these grounds do not contain a common core 18 of operative facts. Ground 2 is dismissed as untimely. 19 In ground 3 of his first-amended petition, Downs alleges that his trial 20 counsel was ineffective for failing to ask the trial court for a Mendoza jury 21 instruction informing the jury that to convict him of both first-degree kidnapping 22 and child abuse, the State had to show that the movement of the child required 23 for the kidnapping charge was not incidental to the related child abuse charge. 24 (ECF No. 29 at 16.) Downs argues that ground 3 of his first-amended petition 25 relates back to grounds 4 and 5 of his original petition. (ECF No. 46 at 20.) In 26 ground 4 of his original petition, Downs alleged the following: 27 [Trial counsel] failed to research and investigate a meaningful 28 defense instead relying on prosecutor’s files. Due to defense 1 was ill-prepared for trial and subsequently was unable to argue 2 against the prosecution’s weak case. Counsel was grossly negligent in his responsibilities. 3 4 (ECF No. 7 at 13.) This Court does not find that ground 3 of Down’s first-amended 5 petition relates back to grounds 4 and 5 of his original petition. A claim that trial 6 counsel failed to request a Mendoza instruction and a claim that trial counsel 7 failed to research and investigate a defense do not share a common core of 8 operative facts. Ground 3 is dismissed as untimely. 9 In ground 4 of his first-amended petition, Downs alleges that his trial 10 counsel was ineffective for failing to object to erroneous instructions on child 11 abuse. (ECF No. 29 at 17.) Specifically, Downs claims that his trial counsel failed 12 to ensure that the modifier “substantial” was included in the jury instruction on 13 child abuse. (Id. at 17–18.) Like ground 3, Downs argues that ground 4 of his 14 first-amended petition relates back to grounds 4 and 5 of his original petition. 15 (ECF No. 46 at 21.) This Court does not find that ground 4 of Down’s first- 16 amended petition relates back to grounds 4 and 5 of his original petition. A claim 17 that trial counsel failed to object to a jury instruction and a claim that trial 18 counsel failed to research and investigate a defense do not share a common core 19 of operative facts. Ground 4 is dismissed as untimely. 20 In ground 6 of his first-amended petition, Downs alleges that his trial 21 counsel was ineffective for permitting the victim to testify via Skype and for failing 22 to effectively cross-examine the victim. (ECF No. 29 at 19.) Downs argues that 23 ground 6 of his first-amended petition relates back to ground 5 of his original 24 petition. (ECF No. 46 at 22.) This Court does not find that ground 6 of Down’s 25 first-amended petition relates back to ground 5 of his original petition. A claim 26 that trial counsel failed to conduct a meaningful cross-examination and a claim 27 that trial counsel failed to research and investigate a defense do not share a 28 common core of operative facts. Ground 6 is dismissed as untimely. 1 || INI. CONCLUSION 2 It is therefore ordered that Respondents’ Motion (ECF No. 36) is denied, in 3 || part, and granted, in part, as follows: (1) grounds 1, 2, 3, 4, and 6 are dismissed as untimely, and (2) grounds 5, 7, 8, and 9 are technically exhausted and 5 || procedurally defaulted, and this Court defers consideration of whether Downs 6 || can demonstrate cause and prejudice under Martinez v. Ryan to overcome the 7 || procedural default of these grounds until after the filing of an answer and reply 8 || in this action. 9 It is further ordered that Respondents file an answer to the remaining 10 || grounds in the first-amended petition—grounds 5, 7a, 7b, 7c, 7d, 7e, 8, and 9— 11 || within 60 days of the date of this order. Downs will then have 30 days from service 12 || of the answer within which to file a reply. 13 It is further ordered that the Clerk substitute Nethanjah Breitenbach for 14 || Respondent State of Nevada. 15 DATED THIS 13th day of November 2024. 16 17 en Ans . jlosent 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28