Porter v. Garrett ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DANIEL S. PORTER, Case No. 3:22-cv-00089-MMD-CLB 7 Petitioner, ORDER v. 8 9 GARRETT, et al., 10 Respondents. 11 12 Petitioner Daniel S. Porter, a Nevada prisoner, has filed a counseled Third- 13 Amended Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 27 14 (“Third-Amended Petition”).) Currently before the Court is Respondents’ motion to dismiss 15 the Third-Amended Petition. (ECF No. 41 (“Motion”).) Porter opposed the Motion, and 16 Respondents replied. (ECF Nos. 47, 51.) For the reasons discussed below, the Court 17 grants the Motion, in part. 18 I. BACKGROUND 19 A jury found Porter guilty of three counts of sexual assault with the use of a deadly 20 weapon, battery with the intent to commit sexual assault with the use of a deadly weapon, 21 first-degree kidnapping with the use of a deadly weapon, and robbery with the use of a 22 deadly weapon. (ECF No. 10-9.) Porter was sentenced to an aggregate total of life in 23 prison with parole eligibility after a minimum of 62 years. (Id.) Porter appealed, and the 24 Nevada Court of Appeals affirmed on April 28, 2017. (ECF No. 10-15.) 25 On December 19, 2017, Porter petitioned the state court for post-conviction relief. 26 (ECF No. 10-17.) The state court denied Porter’s petition. (ECF No. 10-21.) Porter 27 appealed, and the Nevada Supreme Court affirmed on November 10, 2021. (ECF No. 10- 28 26.) 1 Porter commenced this federal habeas action on or about February 14, 2022. (ECF 2 No. 1.) This Court granted Porter’s motion for the appointment of counsel and appointed 3 the Federal Public Defender to represent Porter. (ECF Nos. 5, 12.) Porter filed a 4 counseled First-Amended Petition, counseled Second-Amended Petition, and counseled 5 Third-Amended Petition. (ECF Nos. 13, 14, 27.) Porter raises the following grounds for 6 relief in his Third-Amended Petition: 7 1.1 His trial counsel failed to investigate. 1.2 His trial counsel failed to cross-examine witnesses. 8 2. The trial court failed to grant a continuance for further DNA analysis. 3. The evidence was insufficient to support his convictions. 9 4.1 His trial counsel failed to investigate and properly prepare for trial. 4.2 His trial counsel failed to object to multiple instances of prosecutorial 10 misconduct during closing arguments. 4.3 His trial counsel failed to object to portions of the expert’s testimony. 11 5. His appellate counsel was ineffective. 6. The prosecution committed prosecutorial misconduct during closing 12 arguments. 7. There were cumulative errors raised on state post-conviction. 13 8. His sentence violated his right to be free from cruel and unusual punishment. 14 15 (ECF No. 27.) 16 II. LEGAL STANDARDS & ANALYSIS 17 Respondents argue that (1) any claims in the Third-Amended Petition that do not 18 relate back to a timely petition must be dismissed as untimely; (2) Porter failed to develop 19 the factual basis for ground 1.1; (3) grounds 1, 6, and 7 are unexhausted; (4) all 20 technically exhausted grounds should be dismissed as procedurally defaulted; (5) 21 grounds 1.2 and 4.2 are not cognizable; and (6) grounds 1.1 and 4.1 are duplicative. (ECF 22 No. 41.) The Court will address these arguments in turn. 23 A. Timeliness 24 Respondents argue that Porter’s Third-Amended Petition is untimely and because 25 ground 1.1 does not relate back to his timely original petition or his timely Second- 26 Amended Petition and must be dismissed. (ECF No. 41 at 5–6.) 27 A new claim in an amended petition that is filed after the expiration of the 28 Antiterrorism and Effective Death Penalty Act one-year limitation period will be timely only 1 if the new claim relates back to a claim in a timely-filed pleading on the basis that the 2 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 4 held that habeas claims in an amended petition do not arise out of “the same conduct, 5 transaction or occurrence” as claims in the original petition merely because the claims all 6 challenge the same trial, conviction, or sentence. Id. at 655-64. Rather, habeas claims 7 asserted in an amended petition relate back “only when the claims added by amendment 8 arise from the same core facts as the timely filed claims, and not when the new claims 9 depend upon events separate in ‘both time and type’ from the originally raised episodes.” 10 Id. at 657. In this regard, the reviewing court looks to “the existence of a common ‘core of 11 operative facts’ uniting the original and newly asserted claims.” Id. at 659. 12 Ground 1.1 in Porter’s timely Second-Amended Petition asserted that his trial 13 counsel was ineffective for failing to investigate. (ECF No. 14 at 27-34.) Specifically, 14 Porter alleged that his attorney failed to investigate the DNA evidence in the case. (Id.) 15 The only difference between ground 1.1 in the Second-Amended Petition and ground 1.1 16 in the Third-Amended Petition is that the Third-Amended Petition includes details from 17 Porter’s DNA expert. (ECF No. 27 at 31-36.) The addition of this factual support does not 18 mean that ground 1.1 of the Second-Amended Petition and ground 1.1 of the Third- 19 Amended Petition do not share a common core of operative facts. See Mayle, 545 U.S. 20 at 659. Indeed, the operative fact remains the same: Porter’s trial counsel was ineffective 21 in investigating the DNA evidence. As such, the Court finds that ground 1.1 of the Third- 22 Amended Petition relates back and is timely. 23 Relatedly, Respondents argue that Porter failed to develop the factual basis for 24 ground 1.1, so this Court should dismiss ground 1.1 or strike the new evidence. (ECF No. 25 41 at 11.) The new evidence is Porter’s report from the DNA expert, which was not part 26 of the state court record. Porter rebuts that this Court can consider this new evidence 27 because he attempted to develop it in the state court but was denied. (ECF No. 47 at 10.) 28 The Court will not dismiss the entirety of ground 1.1 and defers ruling on the request to 1 strike this new evidence until the time of merits review given that the Court has found, as 2 is outlined below, that ground 1.1 is unexhausted. 3 B. Exhaustion 4 Respondents argue that grounds 1.1, 1.2, 6, and 7 are unexhausted. (ECF No. 41 5 at 7.) A state prisoner must exhaust state court remedies on a habeas claim before 6 presenting that claim to the federal courts. See28 U.S.C. § 2254(b)(1)(A). This exhaustion 7 requirement ensures that the state courts, as a matter of comity, will have the first 8 opportunity to address and correct alleged violations of federal constitutional 9 guarantees. See Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). “A petitioner has 10 exhausted his federal claims when he has fully and fairly presented them to the state 11 courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014). To present a claim fully 12 and fairly, a petitioner must present the substance of his claim to the state courts, and the 13 claim presented to the state courts must be the substantial equivalent of the claim 14 presented to the federal court. See Picard v. Connor, 404 U.S. 270, 278 (1971). The state 15 courts have been afforded a sufficient opportunity to hear an issue when a petitioner has 16 presented the state court with the issue’s factual and legal basis. See Weaver v. 17 Thompson, 197 F.3d 359, 364 (9th Cir. 1999). A petitioner may reformulate his claims so 18 long as the substance of his argument remains the same. Picard, 404 U.S. at 277-78. 19 1. Ground 1.1 20 As a reminder, in ground 1.1, Porter alleges that his trial counsel was ineffective 21 for failing to investigate the DNA evidence. (ECF No. 27 at 31.) Porter argues that this 22 ground is exhausted because he attempted to raise it before the state court, and even 23 though the state court denied his request to hire a DNA expert to support this ground, he 24 appealed that denial to the Nevada appellate courts. (ECF No. 47 at 15-16.) The Court 25 disagrees. In his appeal to the Nevada Supreme Court, “Porter argue[d] that counsel 26 should have further investigated and challenged the DNA evidence by retaining a defense 27 expert.” (ECF No. 10-26 at 3.) However, importantly, the Nevada Supreme Court denied 28 this claim, in part, because “Porter does not argue, nor has he alleged sufficient facts to 1 demonstrate, that independent expert testing would have yielded different results.” (Id.) 2 The addition of the DNA expert’s report in ground 1.1 warrants a finding that ground 1.1 3 is unexhausted. See Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (“A claim has 4 not been fairly presented in state court if new factual allegations either fundamentally alter 5 the legal claim already considered by the state courts, or place the case in a significantly 6 different and stronger evidentiary posture than it was when the state courts considered 7 it.”). 8 2. Ground 1.2 9 In ground 1.2, Porter alleges that his trial counsel failed to cross-examine 10 witnesses. (ECF No. 27 at 36.) Porter acknowledges that ground 1.2 is unexhausted. 11 (ECF No. 47 at 21.) However, Porter asserts that ground 1.2 is technically exhausted and 12 procedurally defaulted and that he can overcome the procedural default under Martinez 13 v. Ryan, , 566 U.S. 1 (2012). (Id. at 22.) 14 A claim may be considered procedurally defaulted if “it is clear that the state court 15 would hold the claim procedurally barred.” Sandgathe v. Maass, 314 F.3d 371, 376 (9th 16 Cir. 2002). Porter would face several procedural bars if he were to return to state court. 17 See, e.g., NRS §§ 34.726, 34.810. Nevada has cause-and-prejudice and fundamental 18 miscarriage of justice exceptions to its procedural bars, which are substantially the same 19 as the federal standards. If a petitioner has a potentially viable cause-and-prejudice or 20 actual-innocence argument under the substantially similar federal and state standards, 21 then they cannot establish that “it is clear that the state court would hold the claim 22 procedurally barred.” Sandgathe, 314 F.3d at 376. For that reason, the courts in this 23 district have generally declined to find a claim subject to anticipatory procedural default 24 unless the petitioner represents that he would be unable to establish cause and prejudice 25 in a return to state court. In such a case, the claim would generally be subject to 26 immediate dismissal as procedurally defaulted, as the petitioner would have conceded 27 that he has no grounds for exception to the procedural default in federal court. 28 1 A different situation is presented, however, where the Nevada state courts do not 2 recognize a potential basis to overcome the procedural default arising from the violation 3 of a state procedural rule that is recognized under federal law. In Martinez, the Supreme 4 Court held that the absence or inadequate assistance of counsel in an initial-review 5 collateral proceeding may be relied upon to establish cause excusing the procedural 6 default of a claim of ineffective assistance of trial counsel. See id. at 9. The Nevada 7 Supreme Court does not recognize Martinez as cause to overcome a state procedural 8 bar under Nevada state law. See Brown v. McDaniel, 331 P.3d 867, 875 (Nev. 2014). 9 Thus, a Nevada habeas petitioner who relies upon Martinez—and only Martinez—as a 10 basis for overcoming a state procedural bar on an unexhausted claim can successfully 11 argue that the state courts would hold the claim procedurally barred but that he 12 nonetheless has a potentially viable cause-and-prejudice argument under federal law that 13 would not be recognized by the state courts when applying the state procedural bars. 14 Here, Porter advances only Martinez as a basis for excusing the anticipatory 15 default of ground 1.2. Accordingly, the Court considers ground 1.2 to be technically 16 exhausted and procedurally defaulted. Because the analysis of cause and prejudice to 17 overcome the procedural default of ground 1.2 is necessarily intertwined with the merits 18 of ground 1.2, the Court defers a determination of whether Porter can overcome the 19 procedural default of ground 1.2 until the time of merits determination. 20 3. Ground 6 21 In ground 6, Porter alleges that the state committed prosecutorial misconduct 22 during closing arguments. (ECF No. 27 at 67.) Respondents contend that Porter only 23 presented a related claim of ineffective assistance of counsel for counsel’s failure to 24 object to the instances of prosecutorial misconduct, but he did not present the underlying 25 claim of prosecutorial misconduct. (ECF No. 41 at 10.) Porter rebuts that he presented 26 both an ineffective assistance of counsel claim for failing to object to several instances of 27 prosecutorial misconduct and the underlying prosecutorial misconduct claims. (ECF No. 28 47 at 18.) Although Porter argued the facts of the underlying prosecutorial misconduct 1 claims to support his argument that his trial counsel was ineffective for failing to object, 2 this fails to exhaust the underlying prosecutorial misconduct claim. See Rose v. 3 Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005) (“Here, although Rose’s Fifth Amendment 4 claim is related to his claim of ineffective assistance, he did not fairly present the Fifth 5 Amendment claim to the state courts when he merely discussed it as one of several 6 issues which were handled ineffectively by his trial and appellate counsel. While 7 admittedly related, they are distinct claims with separate elements of proof, and each 8 claim should have been separately and specifically presented to the state courts.”). 9 Ground 6 is unexhausted. 10 4. Ground 7 11 In ground 7, Porter alleges that the cumulative errors raised in his state post- 12 conviction petition—in other words, grounds 4, 5, and 6 of his instant Third-Amended 13 Petition—prejudiced him. (ECF No. 27 at 68.) However, Porter then confusingly states 14 that “[t]he errors set forth in Claims 3 and 5 [of his Third-Amended Petition] implicate 15 important federal constitutional rights.” (Id.) Respondents argue that (1) Porter presented 16 a cumulative error claim in his state postconviction appeal, but ground 3 of his Third- 17 Amended Petition was not a part of that cumulative error claim, and (2) because ground 18 6 is unexhausted, ground 7’s inclusion of ground 6 renders ground 7 unexhausted. (ECF 19 No. 41 at 10.) Porter clarifies that his Third-Amended Petition contained a typographical 20 error and that he meant to include grounds 4, 5, and 6 of his Third-Amended Petition 21 within his cumulative error claim. (ECF No. 47 at 19.) Turning to Respondents’ latter 22 argument, to the extent that ground 7 incorporates ground 6, it is unexhausted. 23 C. Cognizable Claims 24 Respondents argue that grounds 1.2, 4.2, and 7 are not cognizable in federal 25 habeas. (ECF No. 41 at 12.) Specifically, Respondents argue that grounds 1.2 and 4.2 26 contain allegations about the cumulative effect of Porter’s counsel’s errors establishing 27 prejudice under Strickland v. Washington, 466 U.S. 668 (1984), and ground 7 alleges 28 cumulative error in his post-conviction proceedings, but according to Respondents, 1 cumulative error claims are not cognizable because circuit courts disagree on whether 2 cumulative error is a basis for federal habeas relief. (Id. at 13.) 3 When conducting habeas review, a federal court is limited to deciding whether a 4 conviction violates the Constitution, laws, or treaties of the United States. See 28 U.S.C. 5 § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Unless an issue of federal 6 constitutional or statutory law is implicated by the facts presented, the claim is not 7 cognizable in federal habeas. See McGuire, 502 U.S. at 68. Because United States 8 Supreme Court precedent has clearly established the cumulative error doctrine, grounds 9 1.2, 4.2, and 7 are cognizable. See Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) 10 (“The Supreme Court has clearly established that the combined effect of multiple trial 11 court errors violates due process where it renders the resulting criminal trial fundamentally 12 unfair.”). 13 D. Duplicative Claims 14 Respondents argue that ground 1.1 and 4.11 are duplicative, with the primary 15 distinction being the new evidence that he added to ground 1.1. (ECF No. 41 at 15.) Porter 16 did not respond to this argument. (ECF No. 47.) Given that the Court has determined that 17 ground 1.1 is unexhausted, it defers ruling on this argument until after Porter has elected 18 how to he wishes to proceed on ground 1.1. 19 E. Mixed Petition 20 A federal court may not entertain a habeas petition unless the petitioner has 21 exhausted all available and adequate state court remedies for all claims in the petition. 22 See Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed petition” containing both 23 exhausted and unexhausted claims is subject to dismissal. Id. Because Porter’s Third- 24 Amended Petition is mixed, he has three options: (1) file a motion to dismiss seeking 25 partial dismissal of only the unexhausted claim(s); (2) file a motion to dismiss the entire 26 1Respondents argue that the Court should dismiss ground 4.1 to the extent that it 27 asserts state court error for failing to hold an evidentiary hearing. (ECF No. 41 at 14.) However, after Porter clarified that he has not attempted to raise a claim related to the 28 state court’s failure to hold an evidentiary hearing, Respondents withdrew this argument. 1 || petition without prejudice in order to return to state court to exhaust the unexhausted 2 || claim(s); and/or (3) file a motion for other appropriate relief, such as a motion for a stay 3 || and abeyance asking the Court to hold his exhausted claim(s) in abeyance while he 4 || returns to state court to exhaust the unexhausted claim(s). 5 || lll. CONCLUSION 6 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 41) is granted 7 || as follows: (1) grounds 1.1, 6, and a portion of 7 are unexhausted, and (2) ground 1.2 is 8 || technically exhausted and procedurally defaulted, although consideration of whether 9 || Porter can demonstrate cause and prejudice under Martinez to overcome the procedural 10 || default of ground 1.2 is deferred until after the filing of an answer and reply in this action. 11 It is further ordered that Porter has 30 days from the date of this order to inform 12 || the Court how he wishes to proceed with his mixed petition as outlined in this order. If 13 || Porter chooses to file a motion for a stay and abeyance or seek other appropriate relief, 14 || the Respondents may respond according to Local Rule 7-2. 15 DATED THIS 3% day of September 2024. 16 17 MIRANDA M. DU 18 CHIEF UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28