Brown v. Baker

• Decision Date: 12 September 2019
• Docket Number: Case No. 3:17-cv-00687-MMD-WGC
• Parties: JASON S. BROWN, Petitioner, v. WARDEN BAKER, et al., Respondents.
• Court: U.S. District Court — District of Nevada

JASON S. BROWN, Petitioner, v. WARDEN BAKER, et al., Respondents.

Case No. 3:17-cv-00687-MMD-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

September 12, 2019

ORDER

I. SUMMARY

This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by Petitioner Jason S. Brown, a Nevada prisoner who is represented by counsel. Currently before the Court is Respondents' Motion to Dismiss ("Respondents' Motion") (ECF No. 20). Brown has opposed (ECF Nos. 31, 36-1), and Respondents have replied (ECF Nos. 35, 47).¹ Also before the Court is Brown's Motion for Evidentiary Hearing ("Petitioner's Motion") (ECF No. 37). Respondents have opposed (ECF No. 48). No reply brief was filed and the deadline for doing so has expired. For the reasons discussed below, Respondents' Motion is granted and Petitioner's Motion is denied.

II. RELEVANT BACKGROUND

A. Procedural History²

Brown challenges a conviction and sentence imposed by the Second Judicial

///District Court for Washoe County, Nevada. In June 2015, Brown entered a plea of nolo contendere to seven felony charges of "torturing and/or killing an animal," in violation of NRS § 574.100. (ECF No. 21-13.) On October 1, 2015, the State Court entered a judgment of conviction sentencing Brown to consecutive sentences of 19 to 48 months per count. (ECF No. 21-17.) An amended judgment was entered December 30, 2015. (ECF No. 21-23.) He did not appeal.

Brown filed a state petition for writ of habeas corpus on October 4, 2016. (ECF No. 21-25.) He also requested that counsel be appointed. (ECF No. 21-24.) The state court appointed counsel. (ECF No. 21-25.) After multiple extensions of time, counsel filed a supplemental petition in May 2017. (ECF No. 22-5.)

Respondents filed a motion to dismiss, arguing that Brown's state petition was untimely. (ECF No. 22-6.) In November 2017, the state court granted Respondents' motion and denied the state petition as time-barred. (ECF No. 22-15.) Brown appealed. The Nevada Court of Appeals affirmed the state court's ruling, and a remittitur issued on September 20, 2018. (ECF Nos. 22-28, 22-29.)

B. Federal Habeas Action

On November 17, 2017, Brown filed his original federal habeas petition along with a motion for appointment of counsel. (ECF No. 1.) This Court appointed counsel. (ECF Nos. 5, 11.) In November 2018, Brown filed a counseled First Amended Petition ("Petition") (ECF No. 19) alleging three grounds.

Respondents now move to dismiss the petition as untimely, partially unexhausted and/or procedurally defaulted.

III. TIMELINESS

A. Legal Standard

The Antiterrorism and Effective Death Penalty Act ("AEDPA") establishes a one-year period of limitations for federal habeas petitions filed by state prisoners under 28 U.S.C. § 2254. In relevant part, AEDPA provides:

(1) A 1-year period of limitation shall apply to an application for a writ ofhabeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; [or]

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action . . . .

28 U.S.C. § 2244(d).

Brown argues that his federal petition should be considered timely because he is entitled to both equitable tolling and statutory tolling under §§ 2244(d)(1)(B). The Ninth Circuit has outlined the correct order of analysis for claims of statutory and equitable tolling. Federal courts must first determine whether a petition is untimely under the AEDPA one-year limitation period. Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). Second, the court considers whether "a petition is timely due to statutory tolling under § 2244(d)(2)," which provides tolling when a properly filed application for post-conviction or other collateral review is pending in the state courts. Id. Third, the court determines whether equitable tolling is appropriate. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002). If necessary, the court then addresses statutory tolling under § 2244(d)(1)(B) (i.e., delayed accrual), which postpones the start of the one-year limitation period until an unconstitutional, state-created impediment to filing is removed.³ Id. Accordingly, the Court will address Brown's tolling arguments in this sequence.

B. Timeliness Under § 2244(d)(1)(A)

The one-year period begins to run from the latest of four possible triggering dates, with the most common being the date on which a petitioner's state court conviction became final. 28 U.S.C. § 2244(d)(1)(A). When the state court issues an amended

///judgment of conviction, AEDPA's one-year limitation period restarts from the date of amendment. Smith v. Williams, 871 F.3d 684, 687 (9th Cir. 2017). When no direct appeal is filed, a judgment becomes final when the time period for seeking such review expires. 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012). For prisoners convicted in Nevada, a notice of appeal must be filed "with the district court clerk within 30 days after the entry of the judgment or order being appealed." Nev. R. App. P. 4(b)(1).

Here, Brown did not file a direct appeal. His amended judgment of conviction was entered December 30, 2015. (ECF No. 21-23.) Thus, the time for Brown to seek such review expired January 30, 2016. The AEDPA limitation period began running after this date. Absent any tolling or delayed accrual, the limitation period expired one year later on January 30, 2017. This expiration date is not disputed.

C. Equitable Tolling

The Supreme Court has held that AEDPA's limitation period "is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). However, equitable tolling is appropriate only if a petitioner can show: (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A petitioner "must show that some 'external force' caused his untimeliness, rather than mere oversight, miscalculation or negligence." Velasquez v. Kirkland, 639 F.3d 964, 969 (9th Cir. 2011) (quotation omitted). Thus, he must demonstrate a causal relationship between the extraordinary circumstance and the lateness of his filing. E.g., Bryant v. Arizona Att. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007) (untimeliness must be "caused by an external impediment and not by [petitioner's] own lack of diligence"). The petitioner bears the burden of demonstrating that he is entitled to equitable tolling. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999), and "the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quotation omitted).

The Ninth Circuit has "adopted the 'stop clock' approach to analyzing claims for equitable tolling. "[T]he statute-of-limitations clock stops running when extraordinary circumstances first arise, but the clock resumes running once the extraordinary circumstances have ended or when the petitioner ceases to exercise reasonable diligence, whichever occurs earlier." Luna v. Kernan, 784 F.3d 640, 651 (9th Cir. 2015) (citing Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir. 2014)).

Brown argues four grounds to justify equitable tolling: (1) trial counsel abandoned Brown after sentencing, (2) Brown suffered from threats of violence and spent time in administrative segregation during his first year in prison, (3) post-conviction counsel erroneously conceded the untimeliness of Brown's state petition, and (4) the state court and post-conviction counsel misled Brown to reasonably believe he had properly filed the state petition.

1. Abandonment by Trial Counsel

"Equitable tolling may be warranted in instances of unprofessional attorney behavior; however, the AEDPA deadline will not be tolled for a garden variety claim of excusable attorney neglect or mistake." Doe v. Busby, 661 F.3d 1001, 1011-12 (9th Cir. 2011) (citing Spitsyn v. Moore, 345 F.3d 796, 800-02 (9th Cir. 2003)); see also Holland, 560 U.S. at 651 (attorney's professional misconduct could "amount to egregious behavior and create an extraordinary circumstance that warrants equitable tolling"); Porter v. Ollison, 620 F.3d 952, 960 (9th Cir. 2010) (interpreting Holland to treat "violations of canons of professional responsibility" as evidence that attorney's conduct was "extraordinary"). The attorney's misconduct must be "a sufficiently egregious misdeed like malfeasance or failing to fulfill a basic duty of client representation" to warrant equitable tolling. Doe, 661 F.3d at 1012 (citation omitted). Where counsel's inaction had no effect on the timeliness of the petitioner's federal habeas filing, equitable tolling will not be warranted. United States v. Buckles, 647 F.3d 883, 890-91 (9th Cir. 2011) (citing Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010)).

Brown asserts that his trial counsel, John Oakes, abandoned him and refusedcontact with him after the October 2015 sentencing hearing. Brown contends that he expressed discontent with his sentence to Oakes at sentencing. (ECF No. 38-3 at 2, ¶ 4.) In the days following, Brown avers that he attempted to contact Oakes by phone multiple times as he intended to ask Oakes to pursue an appeal. (Id. ¶ 5.) When Oakes did not take or return his call, Brown claims he asked his father, Randen L. Brown ("Randy"), to contact Oakes and direct Oakes to call Brown.⁴ (Id. ¶ 6; ECF No. 38-2 at 2, ¶ 3.) Brown states that Randy attempted to contact Oakes several times and left multiple voice messages asking Oakes to contact Brown, but...