Dale v. Williams

2                                                                        

3                     UNITED STATES DISTRICT COURT                       

4                          DISTRICT OF NEVADA                            

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6    ERIC L. DALE,                     Case No. 3:20-cv-00031-MMD-CLB    

7                        Petitioner,             ORDER                   
         v.                                                             
8                                                                        
    BRIAN E. WILLIAMS, et al.,                                          
9                                                                        
                     Respondents.                                       
10                                                                       

11  I.   SUMMARY                                                         
12       This is a habeas corpus action brought under 28 U.S.C. § 2254 by Petitioner Eric 
13  L. Dale, a Nevada prisoner who is represented by the Federal Public Defender. Before 
14  the  Court  is  Respondents’  Motion  to  Dismiss.  (ECF  No.  64.)1  Because  the  Court 
15  concludes that ground 2 is procedurally barred, the Motion is granted in part. The Court 
16  also finds that ground 3 is exhausted and defers a decision on whether grounds 1 and 8 
17  are procedurally barred to the merits disposition.                   
18  II.  BACKGROUND                                                      
19       a.  State-Court Proceedings                                     
20       A jury in Washoe County, Nevada convicted Dale of attempted murder with use of 
21  a deadly weapon, battery with a deadly weapon, and discharging a firearm at or into an 
22  occupied vehicle. (ECF No. 54-3.) The charges stemmed from a 2013 incident when Dale 
23  got into a car accident in Reno, abandoned his car, and began walking down the middle 
24  of a busy street. (See ECF No. 44 at 2.) He called 911 and told the operator that 15-20 
25  people were chasing him. When a police car drove by, Dale tried to flag the officer down. 
26  Then Dale walked up to a car stopped at a red light, raised his gun to the window, and 
27  fired  into  the  car.  The  driver  survived.  In  September  2014,  the  state  district  court 
28                                                                       
2   of parole after 10 years. (ECF Nos. 54-6, 54-7.)                     
3        Dale appealed, and the Nevada Court of Appeals affirmed his convictions. (ECF 
4   No. 55-18.) The Nevada Court of Appeals affirmed the denial of his state postconviction 
5   habeas corpus petition in December 2019. (ECF No. 57-17.)            
6        b.  Federal Habeas Proceedings                                  
7        In January 2020, Dale dispatched his pro se federal habeas petition for mailing. 
8   (ECF No. 1-1.) Counsel was appointed, and this Court granted equitable tolling for the 
9   time  period  when  COVID-19  protocols  prevented  Dale’s  counsel  from  having  a 
10   neuropsychologist examine Dale and prepare a report. (ECF No. 15.) Dale ultimately filed 
11   a second amended petition (“Petition”) in July 2022, setting out eight grounds for relief: 
12             Ground 1: Trial counsel ineffectively failed to investigate (A) a Not 
              Guilty By Reason of Insanity (“NGRI”) defense and (B) a voluntary 
13             intoxication  defense  in  violation  of  the  Sixth  and  Fourteenth 
              Amendments.                                                
14                                                                        

15             Ground 2: Dale was not competent during his trial in violation of the 
              Fifth, Sixth, and Fourteenth Amendments.                   
16                                                                        
              Ground  3:  Trial  counsel  was  ineffective  for  failing  to  seek  a 
17             psychiatric evaluation of Dale concerning his competency as Dale 
              was not competent during his trial.                        
18                                                                        

19             Ground 4: Trial and appellate counsel were ineffective for failing to 
              object  to  the  sentencing  enhancement  based  upon  the  State’s 
20             presentation of incomplete court records.                  

21             Ground 5: Trial and appellate counsel were ineffective for failing to 
              object  to  the  amendment  to  the  indictment  on  count  III  after 
22                                                                        
              presentation of evidence and the conclusion of the State’s case. 
23                                                                        
              Ground 6: Dale was convicted of all counts on insufficient evidence 
24             in violation of the Fifth, Sixth, and Fourteenth Amendments. 

25             Ground 7: Dale was denied his constitutional right to present a 
              complete defense in violation of his due process rights under the 
26                                                                        
              Fifth, Sixth, and Fourteenth Amendments.                   
27                                                                        
              Ground 8: Dale’s counsel ineffectively failed to investigate or present 
28             important mitigating evidence at Dale’s sentencing.        
2        Respondents now move to dismiss the Petition, mainly on the bases that several 
3   claims are unexhausted and/or procedurally defaulted. (ECF No. 64.)  
4   III.  DISCUSSION                                                     
5          a.  This Court previously deemed the second amended petition timely. 
6        Respondents opposed Dale’s motion for application of equitable tolling and to stay 
7   this case. (ECF Nos. 9, 11.) This Court granted the motion, finding that “under the 
8   extraordinary  circumstances  of  the  COVID-19  pandemic,  equitable  tolling  [was] 
9   warranted.” (ECF No. 15 at 1.) In their current motion, Respondents first renew their 
10   argument that the second amended petition is untimely. (ECF No. 64 at 5-7.) Having 
11   already resolved this issue, the Court declines to revisit its decision.  
12          b.  Ground 3 is exhausted.                                    
13        A federal court will not grant a state prisoner’s petition for habeas relief until the 
14   prisoner has exhausted his available state remedies for all claims raised. See Rose v. 
15   Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A habeas petitioner must “present the 
16   state courts with the same claim he urges upon the federal court.” Picard v. Connor, 404 
17   U.S. 270, 276 (1971). And the federal constitutional implications of a claim, not just issues 
18   of state law, must have been raised in the state court to achieve exhaustion. See Ybarra 
19   v. Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To 
20   achieve exhaustion, the state court must be “alerted to the fact that the prisoner [is] 
21   asserting claims under the United States Constitution” and given the opportunity to correct 
22   alleged violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 
23   (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). “[G]eneral appeals to 
24   broad constitutional principles, such as due process, equal protection, and the right to a 
25   fair trial, are insufficient to establish exhaustion.” Hiivala, 195 F.3d at 1106. In addition, 
26   the exhaustion requirement is not met when the petitioner presents to the federal court 
27   facts or evidence which place the claim in a significantly different posture than it was in 
28   the state courts, or where different facts are presented at the federal level to support the 
2   (D. Nev. 1984).                                                      
3        Respondents argue that Dale has not exhausted ground 3—his claim that his trial 
4   counsel was ineffective for failing to arrange a psychiatric evaluation that would have 
5   demonstrated that he was not competent to stand trial. (ECF No. 64 at 9-10; ECF No. 44 
6   at 15-17.) Dale responds that there was substantial evidence to raise a reasonable doubt 
7   about his competency to stand trial. He contends that the jail was improperly medicating 
8   him and that he stopped taking any psychiatric medication weeks before trial.  
9        In his appeal of the denial of his state postconviction petition, Dale argued that he 
10   was not being prescribed the proper medications by the jail and that his actions during 
11   his criminal proceedings should have caused counsel to investigate his competency. 
12   (ECF No. 57-13 (Exh. 101 at 40-42).) The Nevada Supreme Court construed the claim 
13   as one of ineffective assistance of trial counsel because counsel should have known that 
14   Dale was not competent to proceed to trial. (ECF No. 57-17 at 5-6.) While counsel for 
15   Dale now specifically refers to a psychiatric evaluation, this does not “fundamentally alter” 
16   this ground. See Vazquez v. Hillery, 474 U.S. 254, 260 (1986). Both the state and federal 
17   claim allege that trial counsel should have addressed the question of Dale’s competency 
18   prior to trial, including because the incorrect medication and then his refusal to take 
19   medication should have caused trial counsel to question Dale’s competency. The Court 
20   concludes that ground 3 is exhausted.                                
21          c.  Ground 2 is procedurally defaulted.                       
22        Dale contends in ground 2 that he was not competent to stand trial because he 
23   was not being prescribed the proper medications for his mental health conditions. (ECF 
24   No. 44 at 13-15.) Dale presented this claim in his appeal of the denial of his state 
25   postconviction petition. (ECF No. 57-13 (Exh. 101 at 39-42).) The Nevada Supreme Court 
26   held that Dale failed to allege good cause for raising this claim in his postconviction 
27   petition when it could have been raised on direct appeal. (ECF No. 57-17 (Exh. 105 at 5 
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2   procedurally defaulted.                                              
3        This Court cannot review a claim “if the Nevada [appellate court] denied relief on 
4   the basis of ‘independent and adequate state procedural grounds.’” Koerner v. Grigas, 
5   328 F.3d 1039, 1046 (9th Cir. 2003). In Coleman, the Supreme Court held that a state 
6   prisoner who fails to comply with the state’s procedural requirements in presenting his 
7   claims is barred from obtaining a writ of habeas corpus in federal court by the adequate 
8   and independent state ground doctrine. See Coleman v. Thompson, 501 U.S. 722 (1991). 
9   A  state  procedural  bar  is  “adequate”  if  it  is  “clear,  consistently  applied,  and  well-
10   established at the time of the petitioner’s purported default.” Calderon v. United States 
11   District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). A state procedural bar is 
12   “independent” if the state court “explicitly invokes the procedural rule as a separate basis 
13   for its decision.” Yang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003). A state court’s 
14   decision is not “independent” if the application of the state’s default rule depends on the 
15   consideration of federal law. See Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000).  
16        The Ninth Circuit has held that application of the Nevada statutory rules at issue 
17   here, at least in non-capital cases, are independent and adequate state law grounds for 
18   procedural default. See Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003); Bargas v. 
19   Burns, 179 F.3d 1207, 1210-12 (9th Cir. 1999). The Nevada court relied on independent 
20   and adequate state law grounds in rejecting federal ground 2 as procedurally defaulted. 
21   The  claim,  therefore,  is  procedurally  barred  from  federal  habeas  review.  Dale 
22   acknowledges that if the claim is procedurally defaulted, he is unable to overcome that 
23   default. Accordingly, the Court dismisses ground 2.                  
24          d.  The Court defers a decision as to whether grounds 1 and 8 are 
              procedurally defaulted.                                    
25                                                                        
         In ground 1 Dale asserts that trial counsel ineffectively failed to investigate: (A) a 
26                                                                        
    NGRI defense; and (B) a voluntary intoxication defense in violation of the Sixth and 
27                                                                        
    Fourteenth Amendments. (ECF No. 44 at 8-13.) Dale argues in ground 8 that his counsel 
28                                                                        
2   Court previously concluded that the claims in grounds 1 and 8 are technically exhausted 
3   but subject to application of the procedural default doctrine. (ECF No. 63 at 8.)  
4        Dale agrees that these claims are procedurally defaulted but contends that he can 
5   demonstrate cause and prejudice to excuse the default because his state postconviction 
6   counsel was ineffective. (ECF No. 69 at 13-19.) The Court in Coleman held that ineffective 
7   assistance of counsel in postconviction proceedings does not establish cause for the 
8   procedural default of a claim. See 501 U.S. at 750. However, in Martinez v. Ryan, the 
9   Court subsequently held that the failure of a court to appoint counsel, or the ineffective 
10   assistance of counsel in a state postconviction proceeding, may establish cause to 
11   overcome a procedural default in specific, narrowly-defined circumstances. See 566 U.S. 
12   1 (2012). Martinez established that: (1) where an ineffective assistance of counsel claim 
13   must be raised in an initial-review collateral proceeding under state law; (2) if petitioner 
14   had no counsel at the initial-review collateral proceeding or postconviction counsel was 
15   ineffective under Strickland;2 (3) a federal court will not be barred from considering a 
16   substantial claim of ineffective assistance of trial counsel. See id. at 17; see also Trevino 
17   v. Thaler, 569 U.S. 413, 423 (2013).                                 
18        Respondents argue that Dale’s state postconviction counsel rendered effective 
19   assistance; they also insist that grounds 1 and 8 are not substantial, let alone likely to be 
20   successful on the merits. (ECF No. 72 at 5-7.) However, the question of procedural default 
21   is closely intertwined with the merits of the two claims. The Court, accordingly, defers a 
22   decision on Martinez and the procedural default of grounds 1 and 8 until the parties have 
23   the opportunity to fully brief the merits of these claims in the answer and reply. The parties 
24   of course may re-assert any arguments regarding procedural default.  
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2        A state prisoner is entitled to federal habeas relief only if he is being held in custody 
3   in violation of the constitution, laws or treaties of the United States. See 28 U.S.C. § 
4   2254(a). Criminal defendants have a constitutional right to a meaningful opportunity to 
5   present  a  complete  defense.  See  Crane  v.  Kentucky,  476  U.S.  683,  690  (1986); 
6   Chambers v. Mississippi, 410 U.S. 284, 294 (1973). A defendant has the right to offer 
7   witness testimony and to present their version of the facts. See Washington v. Texas, 388 
8   U.S. 14, 19 (1967).                                                  
9        In ground 7, Dale asserts that he was denied the right to present a complete 
10   defense in violation of his Fifth, Sixth, and Fourteenth Amendment due process rights. 
11   (ECF No. 44 at 24-27.) He states that the trial court improperly limited two witnesses’ 
12   testimony that before the day of the shooting he told them he believed people were 
13   following him and had broken into his home. Respondents argue that this presents a 
14   state-law issue and noncognizable on federal habeas review. (ECF No. 64 at 12-14.) But 
15   Dale’s claim may implicate his rights to a meaningful opportunity to present his defense 
16   under Crane and Chambers. He has sufficiently alleged a constitutional violation. The 
17   Court declines to dismiss ground 7 at this time.                     
18   IV.  CONCLUSION                                                      
19        It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 64) is 
20   granted in part and denied in part:                                  
21          •  Ground 2 is dismissed as procedurally barred;              
22          •  Ground 3 is exhausted; and                                 
23          •  A decision on whether Grounds 1 and 8 are procedurally barred is deferred.  
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 1          It  is  further  ordered  that  Respondents  have  60  days  to  file  an  answer  to  the 
2 || remaining  claims  in  the  second-amended  petition.  The  answer  must  contain  all 
3 || substantive and procedural arguments for all surviving grounds of the petition and comply 
4 || with Rule 5 of the Rules Governing Proceedings in the United States District Courts under 
5 || 28  U.S.C.  §  2254.  Petitioner  will  then  have  45  days  from  the  date  of  service  of 
6 || Respondents’ answer to file a reply. 
7          DATED THIS 4" Day of March 2024. 

9                                                     □□ 
                                         MIRANDA M. DU 
10                                        CHIEF UNITED STATES DISTRICT JUDGE 
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