Vang v. Nevada

• Decision Date: 23 May 2003
• Docket Number: No. 00-16639.,00-16639.
• Citation: 329 F.3d 1069
• Parties: Kou Lo VANG, Petitioner-Appellant, v. State of NEVADA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1069

329 F.3d 1069

Kou Lo VANG, Petitioner-Appellant, v. State of NEVADA, Respondent-Appellee.

No. 00-16639.

United States Court of Appeals, Ninth Circuit.

Argued June 11, 2001.

Resubmitted April 29, 2003.

Filed May 23, 2003.

COPYRIGHT MATERIAL OMITTED

Michael K. Powell, Assistant Federal Public Defender, Reno, NV, for the petitioner-appellant.

Victor H. Schulze, II, Deputy Attorney General, Las Vegas, NV, for the respondent-appellee.

Appeal from the United States District Court for the District of Nevada; Philip M. Pro, District Judge, Presiding. D.C. No. CV-97-00940-PMP.

Before HILL,^* GRABER, and McKEOWN, Circuit Judges.

OPINION

GRABER, Circuit Judge.

Petitioner Kou Lo Vang appeals the dismissal without prejudice of his petition for habeas corpus under 28 U.S.C. § 2254. The district court dismissed the petition without prejudice because it was a "mixed petition" containing both exhausted and unexhausted claims. Petitioner argues that the court erred when it concluded that claims 1, 4, 5, 6, and 7 were procedurally defaulted and that claims 8 and 13(F)(1) and (2) were unexhausted. We agree with the district court that claims 1 and 7 were procedurally defaulted and that certain disputed claims were unexhausted. We hold, however, that claims 4, 5, and 6 were not procedurally defaulted.

FACTUAL AND PROCEDURAL HISTORY

A Nevada jury convicted Petitioner of first-degree murder, first-degree murder with a deadly weapon, and conspiracy to commit both crimes. Petitioner was sentenced to three life sentences and two six-year sentences, all to run consecutively. Petitioner filed a direct appeal, which was unsuccessful, followed by a motion for reconsideration, which was denied. Petitioner then filed two successive petitions for post conviction relief in state court. The first petition was denied; Petitioner did not appeal that ruling. The second petition was denied, as was Petitioner's motion for reconsideration. Petitioner's appeal from the denial of the second petition, and the subsequent petition for rehearing, were dismissed by the Nevada Supreme Court.

Petitioner then filed the present federal petition for habeas corpus, alleging numerous grounds for relief.¹ A magistrate judge evaluated the petition and determined that, although some of the claims were exhausted, many of them were not, and others were procedurally defaulted. Accordingly, the magistrate judge recommended that the petition be dismissed as a mixed petition. On de novo review, the district court adopted the findings of the magistrate judge and dismissed Petitioner's petition without prejudice.² Petitioner then filed a timely motion for a certificate of appeal ability, which the district court granted. This timely appeal followed.

STANDARD OF REVIEW

We review de novo a district court's decision to dismiss a habeas petition for procedural default. Manning v. Foster, 224 F.3d 1129, 1132 (9th Cir.2000). We also review de novo a district court's decision to dismiss a habeas petition for failure to exhaust. Roettgen v. Copeland, 33 F.3d 36, 37-38 (9th Cir.1994) (per curiam).

DISCUSSION

A. Procedural Default

1. Background

In a habeas corpus proceeding, we do not review a question of federal law decided by a state court "if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This doctrine "applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements." McKenna v. McDaniel, 65 F.3d 1483, 1488 (9th Cir.1995). If a petitioner has procedurally defaulted, we do not review the claim unless the petitioner "can establish cause and prejudice or that a miscarriage of justice would result in the absence of our review." Moran v. McDaniel, 80 F.3d 1261, 1270 (9th Cir.1996).

The district court found that claims 1, 4, 5, 6, and 7 of Petitioner's federal petition were procedurally defaulted. Specifically, the Nevada Supreme Court dismissed those claims on habeas review because they could have been raised on direct appeal and, thus, were presented in violation of Nevada Revised Statute § 34.810. Petitioner does not argue that those claims were, in fact, raised on direct appeal. Instead, he argues that (a) the state did not rely on the defense of procedural default as to claims 4, 5, and 6 and (b) the procedural rule applied by the state court was neither "adequate" nor "independent" and thus cannot bar federal review. We will discuss each contention in turn.

2. Waiver

In its motion to dismiss the petition as to claims 4, 5, and 6, the state did not rely on the defense of procedural default. The district court applied the doctrine sua sponte. That was error.

Procedural default is an affirmative defense. Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir.2003). Generally, the state must assert the procedural default as a defense to the petition before the district court; otherwise the defense is waived. Franklin v. Johnson, 290 F.3d 1223, 1229 (9th Cir.2002). However, the district court retains discretion to consider the issue sua sponte if the circumstances warrant. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.1998).

In Boyd, we recognized that the district court may, sua sponte, raise the issue of procedural default when the default is obvious from the face of the petition and when recognizing the default would "further the interests of comity, federalism, and judicial efficiency." Id. As further support for our decision in Boyd, we noted that the state had not actually waived the defense because the trial court raised the procedural default issue before the state responded. Id. at 1127. Indeed, the state had not yet been served with the petition. Id.

This case is not like Boyd. Here, the sua sponte decision followed a lengthy response from the state in which it did not rely on the Nevada Supreme Court's imposition of a procedural bar as to claims 4, 5, and 6. Nor is the default obvious from the face of the petition, as it was in Boyd. Because the default was a failure to assert claims that could have been raised on direct appeal, the court had to consider Petitioner's state-court filings to determine which claims were raised in which filings.

Even though this case is distinguishable from Boyd, principles of comity, federalism, and judicial efficiency would permit us to apply a procedural bar even though the state failed to raise it. See Windham v. Merkle, 163 F.3d 1092, 1100 (9th Cir.1998) (applying Boyd and exercising discretion to recognize a procedural bar "on our own motion"). We are not persuaded to do so in this case. Although Petitioner noted in his opening brief the state's failure to raise the defense of default as to claims 4, 5, and 6, the state in its answering brief did not explain the failure or argue why its failure should be excused. In the circumstances, we hold the state to its waiver and thus reverse the district court's decision that claims 4, 5, and 6 were procedurally defaulted. See Franklin, 290 F.3d at 1233 (declining to apply procedural bar when "the state provides no explanation whatsoever for its failure to raise a procedural default argument in the district court, much less any extraordinary reason for reaching the procedural default defense despite the state's failure to raise the issue below").

3. Adequacy and Independence of the State Procedural Bar

The Nevada Supreme Court also determined that Petitioner could not assert claims 1 and 7 in his state habeas petition because those claims could have been brought on direct appeal. Nev.Rev.Stat. § 34.810(1)(b)(2). The state did argue procedural default as to claims 1 and 7, and the district court agreed that those claims were procedurally defaulted. Petitioner contends that § 34.810 does not serve as a bar to those claims because it is not an "adequate" or "independent" state ground.

A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established at the time of the petitioner's purported default." Calderon v. United States Dist. Court, 96 F.3d 1126, 1129 (9th Cir.1996) (citation and internal quotation marks omitted). For our purposes, we look to the manner in which the Nevada Supreme Court applied the procedural bar of § 34.810 between the time Petitioner filed his direct appeal and the time when he filed his state petition for habeas corpus relief, that is, during the period 1988 through 1991. See Petrocelli v. Angelone, 248 F.3d 877, 886 (9th Cir.2001) (establishing relevant "trigger dates" for the purposes of § 34.810 as the date of the petitioner's direct appeal and the date of the post-conviction proceeding).

We have addressed this exact procedural bar for this exact time period at length. In capital cases, we have held that § 34.810 is not an adequate state ground because the Nevada Supreme Court exercises its discretion to recognize defaulted constitutional claims on post-conviction review when a case involves "`the ultimate punishment.'" Id. at 886 (quoting Pertgen v. State, 110 Nev. 554, 875 P.2d 361, 364 (1994) (per curiam)); see also McKenna, 65 F.3d at 1489 (holding, in a capital case, that the Nevada Supreme Court's "refusal to exercise discretion to hear the claim ... is insufficient for the State to invoke the procedural bar doctrine").

Petitioner's is not, however, a capital case. The distinction matters. Valerio v. Crawford, 306 F.3d 742, 776 (9th Cir.2002) (en banc), cert. denied, ___ U.S. ___, 123 S.Ct. 1788, 155 L.Ed.2d 695 (2003) (Mem.), dealt with a default under § 34.810 within the precise time period in which Petitioner's defaults occurred. In Valerio, we held that the Nevada Supreme Court had what we regarded as a "commendable" policy in capital cases to address sua sponte a constitutional error on the merits in spite of a petitioner's...