Williams v. Filson, 110918 FED9, 13-99002

Docket Nº:13-99002, 17-15768, 17-71510
Opinion Judge:WATFORD, CIRCUIT JUDGE
Party Name:Cary Wallace Williams, Petitioner-Appellant, v. Timothy Filson, Warden; Adam Paul Laxalt, Attorney General, Respondents-Appellees. Cary Wallace Williams, Petitioner-Appellant, v. Timothy Filson, Warden; Adam Paul Laxalt, Attorney General, Respondents-Appellees. Cary Wallace Williams, Petitioner, v. Timothy Filson, Warden; Adam Paul Laxalt, ...
Attorney:Michael Pescetta (argued), Randolph M. Fiedler, and Albert Sieber, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant. Victor-Hugo Schulze II (argued), Senior Attorney General; Adam Pa...
Judge Panel:Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens, Circuit Judges.
Case Date:November 09, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Cary Wallace Williams, Petitioner-Appellant,

v.

Timothy Filson, Warden; Adam Paul Laxalt, Attorney General, Respondents-Appellees.

Cary Wallace Williams, Petitioner-Appellant,

v.

Timothy Filson, Warden; Adam Paul Laxalt, Attorney General, Respondents-Appellees.

Cary Wallace Williams, Petitioner,

v.

Timothy Filson, Warden; Adam Paul Laxalt, Attorney General of the State of Nevada, Respondents.

Nos. 13-99002, 17-15768, 17-71510

United States Court of Appeals, Ninth Circuit

November 9, 2018

Argued and Submitted September 20, 2017 San Francisco, California

Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding D.C. Nos. 2:98-cv-00056-PMP-VCF, D.C. No. 2:98-cv-00056-APG-VCF

Application to File Second or Successive Petition Under 28 U.S.C. § 2254

Michael Pescetta (argued), Randolph M. Fiedler, and Albert Sieber, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.

Victor-Hugo Schulze II (argued), Senior Attorney General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.

Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens, Circuit Judges.

SUMMARY

[*]

Habeas Corpus / Death Penalty

The panel affirmed in part and reversed in part the district court's denial of Cary Williams' first federal habeas corpus petition challenging his Nevada murder conviction and death sentence, and remanded for an evidentiary hearing on one of Williams' penalty-phase ineffective assistance of counsel claims; affirmed the district court's denial of his motion for relief under Fed.R.Civ.P. 60(b); and denied Williams' application to file a second or successive federal habeas petition.

The panel held that Williams is entitled to equitable tolling between the date of the one-year AEDPA deadline for filing a federal habeas petition and the date he filed his amended federal petition, and that all of the claims asserted in the amended petition are therefore timely. Because Williams is entitled to equitable tolling even if the claims asserted in the original and amended opinions do not share a common core of operative facts, the panel did not need to decide whether the district court's application of the relation-back standard from Mayle v. Felix, 545 U.S. 644 (2005), is correct. The panel remanded for further proceedings as to the claims the district court dismissed based solely on the assumed untimeliness of the amended petition.

Applying AEDPA deference, the panel held that the district court did not abuse its discretion in denying an evidentiary hearing on Williams' claim that his trial counsel failed to discover and present evidence that he suffers from brain damage. Reviewing de novo, the panel held that the district court did abuse its discretion in denying a hearing on Williams' claim that trial counsel unreasonably failed to investigate and present substantial mitigating evidence regarding his abusive and traumatic childhood.

The panel held that the district court did not err by denying Williams' request for an evidentiary hearing on his claims that trial counsel rendered ineffective assistance during the guilt phase by failing to prepare an adequate defense and during the penalty phase by failing to retain a medical expert who could rebut the state's evidence that the murder involved torture. The panel held that the district court properly held that it could not consider documentary evidence as to the merits of those claims because Williams did not submit that evidence to the state courts in the manner required under state law. The panel rejected Williams' separate argument that he is entitled to have the documentary evidence considered under the rule subsequently established in Martinez v. Ryan, 566 U.S. 1 (2012). The panel concluded that the evidence contained in the declarations at issue does not place these claims in a significantly different and stronger posture such that they must be deemed "new" claims not previously presented to state courts.

The panel held that Williams' constitutional challenges to Nevada's "avoid lawful arrest" aggravating circumstance, Nev. Rev. Stat. § 200.033(5) (1981), lacked merit, even reviewing the merits de novo. The panel rejected Williams' contention that the aggravated circumstance is facially invalid under the Eighth Amendment because it is too vague and because it fails to adequately narrow the class of death- eligible defendants. The panel also rejected Williams' contention that, as applied to him, the aggravating circumstance violates the Ex Post Facto Clause and the Fourteenth Amendment's Due Process Clause because he lacked adequate notice at the time he committed the offense that § 200.033(5) could be applied to the facts of his crime.

The panel held that Nev. Rev. Stat. § 34.726, which imposes a general one-year deadline for the filing of petitions for post-conviction relief, is an independent and adequate state procedural bar to federal review. The panel therefore affirmed the district court's dismissal of several of Williams' claims as procedurally defaulted under that statute. Because all of the claims asserted in Williams' amended petition are timely under AEDPA, the panel reversed the district court's dismissal of five ineffective-assistance claims and remanded for the district court to determine in the first instance whether Williams' procedural default on those claims is excused under Martinez.

The panel assumed without deciding that Williams' motion under Rule 60(b) was not a disguised second or successive petition. The panel wrote that Williams is not entitled to relief because even if Hurst v. Florida, 136 S.Ct. 616 (2016), established the new rule Williams urges, that rule would not apply retroactively in cases on collateral review. The panel wrote that Williams is also not entitled to relief because his Rule 60(b) motion rests on the incorrect premise that the Nevada Supreme Court did not apply a beyond-a-reasonable-doubt standard when it reweighed whether aggravating factors outweighed a mitigating circumstance.

The panel denied Williams' application to file a second or successive petition based on Hurst.

OPINION

WATFORD, CIRCUIT JUDGE

Cary Williams was sentenced to death for the murder of Katherine Carlson in 1983. This is the appeal from the district court's denial of his first federal petition for a writ of habeas corpus. In the main appeal, we address the three issues on which the district court granted a certificate of appealability, as well as two uncertified issues that Williams raised in his opening brief. We affirm in part, reverse in part, and remand for an evidentiary hearing on one of Williams' penalty-phase ineffective assistance of counsel claims.

Williams has also filed a separate appeal from the district court's denial of his motion for relief under Rule 60(b) of the Federal Rules of Civil Procedure. We affirm the denial of Williams' Rule 60(b) motion.

I. Background

A. Conviction and Sentence

Many of the basic facts surrounding the murder of Ms. Carlson are no longer subject to reasonable dispute. Williams pleaded guilty to her murder during the guilt phase of the trial, and during the penalty phase he took the stand and described in detail how he committed the offense.

Williams grew up in the Los Angeles area but moved to Reno, Nevada, in February 1982, when he was 18 years old, both to escape the violence prevalent in his inner-city neighborhood and to pursue his interest in becoming a professional boxer. He moved in with his boxing coach, who lived in a residential community called Horizon Hills. Williams held a job as a maintenance worker in Horizon Hills, a position he used to burglarize several homes in the community while the owners were away during the day.

In June 1982, Ms. Carlson and her husband were a young couple living in Horizon Hills a few houses down the street from where Williams lived. Ms. Carlson worked as a nurse, her husband as a firefighter. Ms. Carlson was eight months pregnant at the time, expecting the couple's first child.

On the night of June 27, 1982, Williams decided to burglarize the Carlsons' home. He thought they had left town on vacation, as the camper he had seen them packing earlier in the day was no longer parked outside their home. But Ms. Carlson was home alone, asleep in her bedroom.

When Williams broke into the Carlsons' home that night, he saw a woman's purse on the kitchen counter, which led him to take a large butcher knife from a drawer in the kitchen. He then walked through the house, room to room, looking for things to steal. When he reached the master bedroom, he...

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