Williams v. Filson, No. 13-99002 (Watford with Berzon & Owens)—The Ninth Circuit partly affirmed and partly reversed the denial of a § 2254 habeas petition filed by a Nevada state prisoner, remanding some claims for further procedings and one claim, involving ineffective assistance of counsel in the penalty phase, for an evidentiary hearing. The court also affirmed the denial of the prisoner’s motion for relief from judgment under Fed. R. Civ. P. 60(b) and denied him authorization to file a second or successive habeas petition.

The underlying crime here involves the burglary of a home in Reno, Nevada, in 1982, during which a woman and her unborn child were killed. The case was the subject of intense publicity at the time, and the petitioner ultimately pleaded guilty to capital murder, manslaughter, and burglary in order to avoid jury sentencing on the charges. Nevada law at the time provided that sentencing would be conducted before a three-judge panel. The prosecution portrayed the petitioner as a “depraved individual whose criminal conduct escalated from a series of home burglaries to ‘the most brutal, the most sadistic and most merciless murder ever in the history of Washoe County.’” A forensic pathologist testified that there was “no question that this woman was tortured before she was murdered.” Family members testified that the petitioner was a “caring and dutiful child” and described his childhood growing up in South Central Los Angeles, during which his mother died and he was “bounced around” between different homes and schools. The panel found four aggravating circumstances and one mitigating circumstances, and set the punishment at death. In postconviction proceedings, two of those aggravating factors (the ones relating to felony murder) were struck as invalid under state law, but the death sentence was upheld under harmless-error review.

The initial federal habeas petition in this case was filed pro se in 1998, but the operative petition here, the third amended petition, was filed in 2007, after the petitioner was allowed to return to state court to exhaust certain claims. That petition raised a total of 38 claims. The district court denied some of them as untimely, some of them as procedurally defaulted because the state courts had denied them as untimely, and some of them on the merits without a hearing. The district court certified three of the claims for appeal, and the court of appeals certified two more after asking the state to respond to the petitioner’s requests on appeal to expand the certificate of appealability.

The panel first held that claims raised in an amended petition filed in 1999 were timely with the benefit of equitable tolling. That petition was filed under the district court’s protocol for handling capital habeas cases, under which the court granted two unopposed requests for deadlines for filing a counseled amended petition with the benefit of investigation and discovery. At the time—before the Supreme Court overruled the Ninth Circuit’s liberal standard for amending a habeas petition without running afoul of the statute of limitations, see Mayle v. Felix, 545 U.S. 644 (2005)—the law permitted amending the petition without regard to timeliness concerns. Following a published Tenth Circuit decision that permitted equitable tolling when a petitioner relies on circuit precedent that is later overruled, the panel allowed equitable tolling to render these claims timely, rejecting the district court’s ultimate reliance on Felix to hold the claims to be untimely. The panel remanded these claims to the district court for further proceedings, including whether to excuse the procedural default under Martinez v. Ryan, 566 U.S. 1 (2012).

The panel considered two related claims of ineffective assistance of counsel in the penalty phase relating to the presentation of mitigating evidence. One of those claims relates narrowly to evidence of brain damage. The other relates more broadly to evidence of childhood abuse and trauma, including the effect on the outcome of the penalty phase considering the brain damage along with that evidence.

On the narrower claim, the Ninth Circuit held that the district court did not abuse its discretion in denying a hearing on the claim after concluding that federal review was limited by 28 U.S.C. § 2254(d)(1). This claim was raised in the petitioner’s sixth round of state postconviction review. A panel of the Nevada Supreme Court ruled that the claim was untimely under state law, but the full court sitting en banc “arguably” reached the merits of the claim in the course of deciding whether to excuse the untimeliness. The en banc state supreme court found no cause and prejudice because the failure to consider the brain damage was not prejudicial under Strickland. The Ninth Circuit, in turn, concluded that this ruling was an adjudication “on the merits” for purposes of § 2254(d)(1), and held that it was not unreasonable under Cullen v. Pinholster, 563 U.S. 170 (2011), for the state court to conclude that the failure to present evidence of brain damage to the sentencing panel would not likely have affected either his decision to plead guilty or the decision to impose a death sentence.

On the broader claim, the Ninth Circuit held that an evidentiary hearing was warranted after cutting through a thicket of procedural hurdles. This claim was raised in the petitioner’s fifth round of state postconviction review. The postconvition court held the claim both to be procedurally barred under the law-of-the-case doctrine and to be meritless. On review, however, the Nevada Supreme Court affirmed the denial of postconviction relief solely on the basis of the procedural bar. On appeal the state conceded that the procedural bar was not adequate to support procedural default, and so the claim was not subject to § 2254(d)(1)’s limitation on relief. The court then held that the petitioner did not “fail to develop the factual basis of his claim in state-court proceedings”—he had presented his claim to the state courts, which had denied it on procedural grounds, and the state postconviction court’s treatment of the merits was not fairly supported by the record. Moreover, his allegations of ineffective assistance were colorable. Sentencing counsel failed to investigate and discover evidence of childhood abuse, and therefore focused her mitigation presentation on the petitioner’s “redeeming qualities.” A solid wall of caselaw establishes that this evidence is classically mitigating; no strategic decision would justify not presenting it. Instead, counsel said, “Where are the mitigating factors? They simply do not exist in this case.” On these facts, the Ninth Circuit ruled that the petitioner should have an evidentiary hearing on this claim.

The panel held that the district court properly denied a hearing on claims relating to the guilt decision. Documents presented for the first time in federal court were not the proper subject of a hearing, because the petitioner did not diligently develop the evidence in state court beforehand. Nor did the documents reframe the claim in a much stronger posture, such that the petitioner could not rely on Ninth Circuit Martinez law to obtain a federal hearing.

The Nevada Supreme Court’s interpretation of its aggravating factor involving avoiding a lawful arrest did not raise ex post facto concerns.

Nevada’s timeliness bar was firmly established and regularly followed, and thus was adequate to support the procedural default of those claims subject to the timeliness bar.

The decision in Hurst v. Florida, 136 S. Ct. 616 (2016), does not apply retroactively to cases on collateral review, and so the district court correctly denied the petitioner’s motion under Fed. R. Civ. P. 60(b) and he was not entitled to file a second or successive habeas petition.

Congratulations to AFPD Mike Pescetta and his team in Las Vegas.