Robinson v. SDCC Warden Hutchings

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 ERIC DEON ROBINSON, Case No. 2:21-cv-01989-RFB-DJA 6 Petitioner, v. ORDER [7] GABRIELA NAJERA, et al., [8] Respondents. [9] 10 This habeas action is brought by Petitioner Eric Deon Robinson under 22 U.S.C. § 2254 . 11 Respondents filed a Motion to Dismiss (ECF No. 26) Grounds Three and Four of the first 12 amended petition as untimely. Also before the Court is Respondents’ Motion for Leave to File 13 Exhibits Under Seal (ECF No. 24). For the reasons discussed below, the Court grants 14 Respondents’ motion to dismiss, in part, finding Ground Three untimely and grants their motion 15 for leave to file exhibits under seal. 16 I. BACKGROUND 17 Robinson challenges a conviction and sentence imposed by the Eighth Judicial District 18 Court for Clark County. In June 2017, the state court entered a judgment of conviction for 19 conspiracy to commit kidnapping, first degree kidnapping with use of a deadly weapon, coercion 20 with use of a deadly weapon, two counts of first-degree kidnapping with use of a deadly weapon 21 resulting in substantial bodily harm, first degree murder with use of a deadly weapon, and 22 attempted murder with use of a deadly weapon. The Nevada Supreme Court affirmed the 23 conviction. In June 2020, Robinson filed a state petition for writ of habeas corpus. The state 24 court denied post-conviction relief and the Nevada Supreme Court affirmed the denial of relief. 25 On October 29, 2021, Robinson initiated this federal habeas corpus proceeding pro se. 26 ECF No. 1. Following appointment of counsel, on May 23, 2023, Robinson filed a first amended 27 habeas petition. ECF Nos. 14, 20. Respondents argue that because the first amended petition is 28 untimely, Grounds Three and Four should be dismissed because the claims do not relate back to 1 Robinson’s earlier timely filed petition. ECF No. 26 at 4-6. 2 II. DISCUSSION 3 a. Relation Back 4 A new claim in an amended petition that is filed after the expiration of the Antiterrorism 5 and Effective Death Penalty Act (“AEDPA”) one-year limitation period will be timely only if the 6 new claim relates back to a claim in a timely-filed pleading under Rule 15(c) of the Federal 7 Rules of Civil Procedure. Under Rule 15, an untimely amendment properly “relates back to the 8 date of the original pleading” as long as it arises out of the same “conduct, transaction, or 9 occurrence.” Fed. R. Civ. P. 15(c). For habeas petitions, “relation back depends on the existence 10 of a common core of operative facts uniting the original and newly asserted claims.” Mayle v. 11 Felix, 545 U.S. 644, 659 (2005). 12 New claims in an amended habeas petition do not arise out of “the same conduct, 13 transaction or occurrence” as prior claims merely because they challenge the same trial, 14 conviction, or sentence. Mayle, 545 U.S. at 661 ; Hebner v. McGrath, 543 F.3d 1133, 1134 (9th 15 Cir. 2008) (“It is not enough that the new argument pertains to the same trial, conviction, or 16 sentence.”). Rather, to properly relate back, a new claim must arise from the same collection of 17 facts alleged in the earlier petition. Mayle, 545 U.S. at 661 ; Schneider v. McDaniel, 674 F.3d 18 1144, 1151 (9th Cir. 2012) (holding that one shared fact in two divergent legal theories was “not 19 sufficient to conclude that they arise out of a common core of operative facts”). An amended 20 habeas petition “does not relate back (and thereby escape AEDPA’s one-year time limit) when it 21 asserts a new ground for relief supported by facts that differ in both time and type” from those 22 alleged in the timely petition. Mayle, 545 U.S. at 650 . 23 Respondents contend that Grounds Three and Four are untimely because Robinson did 24 not raise these claims in his original pro se petition. ECF No. 26 at 6. Robinson asserts that his 25 original petition raises ineffective assistance of counsel claims and both claims were discussed in 26 the Nevada Court of Appeals’ decision attached to his original petition. ECF No. 27 at 3. 27 Robinson relies on the Ninth Circuit’s decision in Ross v. Williams, 950 F.3d 1160 (9th Cir. 28 2020), which held that a state appellate court’s order, attached to a timely petition, was 1 incorporated by reference for the relation-back purposes pursuant to Civil Rules 10(c), 2 15(c)(1)(B), and 81(a)(4), 28 U.S.C. § 2242 , and Habeas Rule 12. 950 F.3d at 1167 . “‘For all 3 purposes,’ including relation back, the original petition consists of the petition itself and any 4 ‘written instruments’ that are exhibits to the petition.” Ross, 950 F.3d at 1167 (quoting Fed. R. 5 Civ. P. 10(c) (internal bracketing omitted)). “Like a brief, a court decision is a written 6 instrument.” Ross, 950 F.3d at 1167 (citing Dye v. Hofbauer, 546 U.S. 1, 4 (2005)). 7 Ross instructs courts to “follow two steps to determine whether an amended petition 8 relates back to an original petition that relied on an appended written instrument to help set forth 9 the facts on which it based its claims”: (1) courts “determine what claims the amended petition 10 alleges and what core facts underlie those claims,” and (2) “for each claim in the amended 11 petition,” courts examine “the body of the original petition and its exhibits” to see whether the 12 pleading set out or attempted to set out “a corresponding factual episode” or “whether the claim 13 is instead supported by facts that differ in both time and type” from those set forth in the original 14 petition. 950 F.3d at 1167 (quoting Fed. R. Civ. P. 15(c)(1)(B); Mayle, 545 U.S. at 650 ) 15 (internal quotation marks omitted). 16 “The central question under this framework is whether the amended and original petitions 17 share a common core of operative facts, as those facts are laid out in the amended petition and 18 ‘attempted to be set out’ in the original petition.” Ross, 950 F.3d at 1168 . “Relation back may be 19 appropriate if the later pleading merely corrects technical deficiencies or expands or modifies the 20 facts alleged in the earlier pleading, restates the original claim with greater particularity, or 21 amplifies the details of the transaction alleged in the preceding pleading.” Ross, 950 F.3d at 1168 22 (internal brackets, quotation marks, and citation omitted) (citing 6A Charles Alan Wright & 23 Arthur R. Miller, Federal Practice and Procedure § 1497 (3d ed. 2019) (internal brackets and 24 quotation marks omitted)). 25 b. Ground Three does not relate back to the original petition. 26 In Ground Three of his first amended petition, Robinson alleges that the state trial court 27 erred because it did not find that trial counsel rendered ineffective assistance for failure to 28 recognize statements regarding the stolen gun, money, and drugs were inadmissible as res gestae 1 evidence. ECF No. 20 at 16-19. Robinson asserts that his pro se allegations referencing 2 ineffective assistance of counsel in addition to the Nevada Court of Appeals’ decision discussing 3 ineffective assistance of counsel attached to his original petition establish a common core of 4 operative facts sufficient to meet the relation back doctrine. Respondents argue that Robinson’s 5 allegations regarding res gestae do not appear anywhere in his original petition. 6 Ground Three does not relate back to Robinson’s original petition because the original 7 petition does not contain allegations asserting ineffective assistance of counsel for failure to 8 recognize inadmissible res gestae evidence. Ross made clear that, for relation back, facts found 9 in documents attached to, and incorporated into, an original petition must support a claim 10 asserted in that petition. See Ross, 950 F.3d at 1167 (“If a petitioner attempts to set out habeas 11 claims by identifying specific grounds for relief in an original petition and attaching a court 12 decision that provides greater detail about the facts supporting those claims, that petition can 13 support an amended petition’s relation back.” (emphasis added)). See also id. at 1168 (“If an 14 exhibit to the original petition includes facts unrelated to the grounds for relief asserted in that 15 petition, those facts were not ‘attempted to be set out’ in that petition and cannot form a basis for 16 relation back.”). 17 Ground Four of Robinson’s original petition appears to assert ineffective assistance of 18 counsel based on failure to address all elements of conspiracy, failure to address false statements, 19 failure to argue about psychological examinations, and failure to argue for charges of a lesser 20 degree. ECF No. 7 at 9. Although Robinson alleges specific ineffective assistance claims in his 21 original petition, this does not allow for relation back of Ground Three, which is a claim of 22 ineffective assistance for failure to recognize statements regarding the stolen gun, money, and 23 drugs were inadmissible as res gestae evidence. Relation back turns not upon whether claims 24 allege—at an exceedingly broad level—the same legal theory but instead on whether the claims 25 arise from the same core of operative facts. As such, there is no connection between the 26 allegations in the original petition and the portion of the state appellate court decision discussing [28] 1 ineffective assistance related to res gestae evidence. Accordingly, Ground Three does not arise 2 from the same core of operative facts as any claim identified in the pro se filings and does not 3 relate back to the original petition. 4 c. Ground Four relates back to the original petition. 5 In Ground Four of his first amended petition, Robinson alleges that counsel rendered 6 ineffective assistance for failure to object to his co-defendant’s counsel’s misstatements of fact 7 and law in closing argument that implied Robinson fired the gun as well as statements implying 8 Robinson raped or attempted to rape Sweitzer. ECF No. 20 at 21. Robinson contends that the 9 claim relates back to the original petition because the original petition contains an allegation that 10 “[Robinson] was unduly and harmfully prejudiced by false statements and accusations intimating 11 ‘rape’ ‘sexual-assault’ and/or ‘attempt’ . . . when prior testimony of b. Schwietzer averred 12 [Robinson] did not touch or look at her in . . . [a] sexual manner . . .” ECF No. 7 at 7. 13 The Court finds that in his original petition, Robinson sets out—or attempts to set out—a 14 series of false statements and assertions made by his codefendant’s counsel that he believes 15 prejudiced him as well as a series of errors made by trial counsel, including failing to address 16 false statements, that deprived him of his Sixth Amendment right. Robinson refers to his claim 17 alleging prejudice related to false statements regarding rape, sexual assault, and attempt of the 18 victim and prior inconsistent statements. ECF No. 7 at 7. In addition, in Ground 2 of his original 19 petition, Robinson alleges that his counsel “had to defend [Robinson] against … his 20 codefendant’s counsel who made ‘blame shifting assertions.’” ECF No. 7 at 5. In Ground 4 of 21 his original petition, Robinson alleges violations of his Sixth Amendment right and asserts that 22 “trial counsel did not address . . . all elements of conspiracy . . . nor did counsel expound on the 23 for[e]going statements or testimony poignantly or succinctly referencing [Sweitzer] and false 24 statements not evidenced in the record.” Id. at 9. 25 Liberally construing the pro se pleadings as required by Ross, the Court finds Robinson [26] 1 As acknowledged by Robinson, the Court notes that page two of the state appellate court [27] decision discussing the facts of the ineffective assistance of counsel claim is missing and is not a 28 part of the attachment to Robinson’s original petition. 1 attempts to set out the ineffective assistance of counsel claim as asserted in Ground Four of his 2 first amended petition. 950 F.3d at 1167 . The Court’s review of the original petition and its 3 exhibits confirms that it sets out a factual episode corresponding to Ground Four. Relation back 4 does not require that “the facts in the original and amended petitions be stated in the same level 5 of detail.” Ross, 950 F.3d at 1168 n.4 (noting that relation back may be appropriate if the later 6 pleading expands or amplifies the facts alleged in the earlier pleading and stating that 7 “[s]ufficient correspondence exists if two claims arise out of the same episode-in-suit.”). 8 Accordingly, Ground Four relates back to the original petition and is not time-barred. 9 III. Motion to Seal 10 Respondents seek leave to file under seal two documents within the index of exhibits, 11 Petitioner’s Pre-Sentence Investigation Reports (“PSI”), Exhibit 51 (ECF No. 25-1), dated May 12 4, 2017, and Victim Impact Statements, Exhibit 52 (ECF No. 25-2), dated May 12, 2017. Under 13 Nevada law, the PSI is “confidential and must not be made a part of any public record.” Nev. 14 Rev. Stat. § 176.156(5). 15 Having reviewed and considered the matter in accordance with Kamakana v. City and 16 County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and its progeny, the Court finds that a 17 compelling need to protect Petitioner’s safety, privacy, and/or personal identifying information 18 outweighs the public interest in open access to court records. Exhibits 51 and 52 are considered 19 properly filed under seal. 20 /// 21 /// 22 /// [28] 1 IV. CONCLUSION 2 IT IS THEREFORE ORDERED: 3 1. Respondents’ Motion to Dismiss (ECF No. 26) is granted in part. Ground Three of the 4 first amended petition is dismissed with prejudice as untimely. 5 2. Respondents’ Motion for Leave to File Exhibits Under Seal (ECF No. 24) is granted. 6 Exhibits 51 (ECF No. 25-1) and 52 (ECF No. 25-2) are considered properly filed under 7 seal. 8 3. Respondents have 60 days from the date of entry of this order to answer Robinson’s 9 remaining grounds for relief, which must comply with Rule 5 of the Rules Governing 10 Section 2254 Cases in the United States District Court. Robinson will have 30 days from 11 the date on which the answer is served to file a reply. [12] 13 DATED: March 22, 2024. ts RICHARD F. BOULWARE, II 15 UNITED STATES DISTRICT JUDGE