Perez v. Neven
2:14-cv-02087
| D. Nev. | Sep 30, 2019Background:
- In 2006 Perez’s boyfriend, Marc Colon, fatally assaulted Perez’s three-year-old daughter; Colon and Perez then disposed of the child’s body and fled; Perez was arrested in 2007.
- After a 22-day trial in 2008 Perez was convicted of first-degree murder, child abuse resulting in substantial bodily harm, and child neglect; she received concurrent terms on abuse counts and a consecutive life term with parole eligibility after 20 years on the murder count.
- Perez pursued direct appeal (affirmed by Nevada Supreme Court) and a state habeas petition (denied after an evidentiary hearing in Jan. 2014); she did not appeal that denial.
- Perez filed a pro se federal §2254 petition mailed Dec. 8, 2014; AEDPA’s one-year deadline expired Dec. 1, 2014. The amended federal petition (filed later by counsel) still named the State of Nevada as respondent.
- Perez claims (1) actual innocence based on new expert and witness evidence (coercive control/battered woman context), and (2) entitlement to statutory/equitable tolling because post‑conviction counsel Bret Whipple abandoned/ineffectively represented her and prison conditions/officials impeded timely filing.
- The court: denied the State’s motion to dismiss without prejudice, granted Perez leave to substitute respondents and to file the proposed second amended petition, granted limited discovery (NDOC mail/phone logs for specific date-range and portions of Whipple/Justice Law Center files), denied the evidentiary hearing without prejudice, and set discovery and refiling deadlines.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Improper respondent / personal jurisdiction | Perez moved to substitute immediate custodian after amended petition named State of Nevada; amendment is timely and harmless | State urged dismissal for lack of personal jurisdiction and noncompliance with court orders | Court granted leave to substitute respondents and ordered filing of second amended petition (no prejudice shown) |
| AEDPA timeliness / actual innocence gateway (Schlup) | Perez proffers new expert (Dr. Mechanic) and witness testimony showing coercive control; claims this new evidence would make conviction unreliable | State says trial evidence already covered coercive-control/abuse, Paglini’s trial testimony was similar, and new material is cumulative—not Schlup‑qualifying | Court did not resolve merits now; directed renewed briefing focused on narrow issues after limited discovery; earlier dismissal denied without prejudice |
| Equitable/statutory tolling based on counsel abandonment (Whipple) | Whipple allegedly failed to communicate, missed hearings, failed to file a reply, controlled large caseload; this amounted to abandonment/ineffective assistance preventing timely filing | State contends Whipple’s conduct was not abandonment, claims lack of evidentiary support that caseload caused prejudice; routine errors insufficient | Court allowed limited discovery into Whipple/Justice Law Center files and caseload records to develop factual basis for tolling claim (good cause found for this limited discovery) |
| Equitable/statutory tolling based on prison/library/official intimidation (Assistant Warden Hill) | Perez alleges limited law library access, delayed financial certificate, and Hill’s intimidation prevented timely filing | State produced NDOC records showing appointments/forms provided; incident with Hill occurred after AEDPA deadline and Perez still mailed petition that day | Court found record insufficient to support tolling for these claims, denied discovery on these points, and held prison access claims unlikely to warrant tolling |
| Discovery scope in habeas | Perez sought broad NDOC logs, personnel records, and full Whipple file to investigate tolling and counsel abandonment | State argued much is irrelevant or cumulative; opposed intrusive discovery into staff and caseload absent showing | Court granted discovery narrowly: complete legal and non-legal mail logs, undredacted phone log for specified period, declarations if logs incomplete, and specific Whipple/Justice Law Center file and caseload/billing records; restricted other requests |
Key Cases Cited
- Schlup v. Delo, 513 U.S. 298 (1995) (establishes actual-innocence gateway to overcome procedural bars)
- Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling applies when petitioner shows diligence and extraordinary circumstance)
- Bracy v. Gramley, 520 U.S. 899 (1997) (habeas discovery requires good cause tied to specific factual assertions)
- Strickler v. Greene, 527 U.S. 263 (1999) (mere speculation that exculpatory material may exist is insufficient for discovery)
- Stanley v. California, 21 F.3d 359 (9th Cir. 1994) (proper respondent is immediate custodian; amendment to name correct respondent permitted)
- Dubrin v. People of California, 720 F.3d 1095 (9th Cir. 2013) (allow amendment of caption where no prejudice shown)
- Martinez v. Ryan, 566 U.S. 1 (2012) (ineffective assistance of post-conviction counsel can excuse procedural default in limited circumstances)
- Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009) (prisoner must show actual prevention from filing to obtain tolling for access‑to‑courts impediments)