*1
purpose to
and abet in
prosecution presents
aid
the murder
proves
evidence that
attempted
Ramirez and .the
murder of guilt beyond a reasonable doubt. See In
Magdelano.
any
Nor could
rea-
Winship,
365-68,
factfinder
re
armed, brother, provid- behind his Juan H. REVERSED AND REMANDED “backup,” deadly ed in the sense of adding WITH TO GRANT A INSTRUCTIONS protecting deadly force or his brother in a WRIT OF HABEAS CORPUS. - n exchange.
Speculation conjecture and cannot place
take the and reasonable inferences direct or
evidence —-whether circumstan guilty
tial —that through Juan both H.— mind and act —acted in guilty consort with COLLIER, Steven W. Petitioner- case, Merendon. In all resolving this Appellant, factual, conflicting inferences in favor of Jackson, see prosecution, 443 U.S. at BAYER, Respondent-Appellee. Bob it is speculation S.Ct. that conclusion H. supports a that Juan 04-15017. No. planned knew that commit Merendon of Appeals, United States Court first-degree murders of Ramirez and Ninth Circuit. Magdelano, that Juan H. took some and action encourage intended to or facilitate and Argued Nov. 2004. Submitted in completing killings.15 Merendon Filed June 2005. Such a lack of Four evidence violates the guarantee teenth Améndment an ac that go
cused must free unless and until , addition, deadly weapon under the California Penal -a with crime is de Code, liability Penal, "[t]he of an aider abettor and fined under California Code section extends also to the natural and reasonable Merkle, 245. Windham v. 163 F.3d Cf. consequences knowingly acts he and (9th Cir.1998). 1101-02 does not Beeman, intentionally encourages.” aids and. .argue first-degree that Juan H. is for liable Cal.Rptr. 674 P.2d To ob7 murder because he and aided abetted the theory, jury tain a under conviction this drawing, misdemeanor exhibiting, offense of aiding abetting must find the elements and using deadly weapon firearm or under -respect target with to the crime "must and California Penal Code 417. We section ac (4) also find that the defendant's confederate cordingly do not claim consider this and target committed an offense -other than the problems may present. constitutional that it crime; (5) offense committed probable confederate was a natural and con record, 16. For all that shown in sequence target crime defen that the appears may Merendon have been Prettyman, dant aided and abetted.” 58 Cal. brought justice shooting for the death of Rptr.2d P.2d at 1020. The state But, so, if of law the failure en- argues that H. is Juan liable for natural Ramirez. forcement to apprehend principal does not probable consequences with an assault guilt impute license state to such serious deadly weapon attempt on Ramirez and an alleged to an aider and abettor absent evi- deadly weapon Magdela- ed assault with a require- dence that meets the constitutional reject argument. no. We The reasons every finding ment element crime be estab- support insufficient evidence to beyond aiding abetting first-degree respect lished reasonable doubt applicable equally homicide are to assault to the accused.
Franny Lam- A. Forsman and John C. brose, NV, petitioner- Vegas, for Las appellant. Wieland, E.
Brian and Robert Sandoval Reno, NV, the respondent-appellee. for FLETCHER, THOMAS, and Before B. BEA, Judges. Circuit FLETCHER, Judge. BETTY B. Circuit Stephen Wayne Petitioner-Appellant appeals the decision for the Dis- States District Court United Nevada, which denied his trict corpus for a writ of habeas under § 2254. The district court denied U.S.C. com- failing for Collier’s habeas limits with of Nevada’s time ply the State chal- habeas relief. Collier pursuing for limit lenges adequacy Nevada’s time and the filing corpus appeals Fur- provided therein. tolling provisions ther, prejudice he cause argues Hammond, to tion Collier gave drugs to who purported procedural excuse his default. gave then them McConnell. McConnell paid drugs money given him jurisdiction We have pursuant *3 by the CNU. McConnell against testified We U.S.C. 2253. reverse district Collier and Hammond at their preliminary and particu- court’s decision hold that the 9,1994. hearing on June application lar of Nevada’s time limits and tolling provisions ease was not Collier faced a several count informa- adequately established to his appeal. tion. He was able to a- negotiate plea Because we reverse on ground, this we do bargain. pled guilty He one to count of not reach question of whether Collier drug trafficking and agreed he to a forty- prejudice. had cause or suffered five-year prison sentence. The additional chargés against Collier dropped. were of Standard Review Collier’s co-defendant pled guilty to a simi- Federal denying district court decisions lar charge agreed and he to a ten-year 28 petitions U.S.C. for pro 2254 prison sentence.- cedural default are reviewed de novo. days Five before Collier sentenced, was Calderon, Fields v. 125 F.3d 759-60 a new Nevada went effect law into reduc- Cir.1997). findings Factual underly ing the minimum prison and maximum ing the decision are for clear reviewed sentences for several criminal offenses. Cambra, error. Luna v. F.3d 959 The sentence for the offense to which Col- (9th Cir.2002). questions Mixed of law pled lier guilty dramatically was reduced. involving and fact constitutional issues are The minimum was years reduced from ten reviewed Myers, de novo. Tomlin years. two The maximum was reduced (9th Cir.1994). 1235, 1241 F.3d from years.1 life to fifteen This statute went July into effect 1995. The revised Background Factual apply statute does not offense com- pursues Collier from ' mitted before- the effective date. on a plea based and sentence Nev. cb. 443 Attempts by Stat. 393. forty-five years trafficking in con- challenge Collier to his sentence based on trolled substances. Collier co-defen- and the amended statute have failed. dant, Hammond, Christopher pled Glen originally by Collier Represented at- guilty selling methamphetamine to a torney Sferrazzk Sferrazza withdrew as informant, government Gary McConnell. early counsel in job because he took a and drugs Collier Hammond sold public appointed sector. The court McConnell on March while the county public office to rep- defender’s working McConnell was with Nevada’s (“CNU”). resent attorneys Collier. Three different Consolidated Narcotics Unit with part public repre- McConnell worked as defender’s office the CNU a plea bargain trafficking charges during sented Collier his preliminary hear- pending against ing, him. During plea negotiations, transac- sentencing. and says: quantity Previously, 1. The amended statute quantity statute "[I]f read: "If the more, grams ... more, involved or but less [i]s grams involved ... is 14 or but less grams, felony than 28 category by for a B grams, by imprisonment than 28 in the state imprisonment prison state for a mini- prison for life for a term not definite less years mum term less of not than 2 and a years fine of less than .than years maximum term not more than 15 $100,000.” Nev.Rev.Stat. Ann. $100,000.” by a fine of not more than Nev. (Michie 1993). 453.3385(2) (1995). Rev.Stat. conviction, listing represent Collier was attorney The final statute, on March proper appeared Mitchell attorney Mitchell. change judgment did sentencing. The amended July at his later, A Collier filed few months represented sentence. previously had Mitchell informant, sen- McConnell, second government’s challenge his sen- reviving tence negotiate plea helped and had McConnell statutory exceeding the maximum charges in tence drug trafficking against several district court considered plea bargain, limit. early part As drug count the merits of this motion held pled guilty McConnell *4 He apply several law to Collier. trafficking. plea The resulted did later, suspension appealed. years and the being dropped Two charges $50,000 sentence and on year prison of a Court denied Collier’s Supreme five placed probation merits, on affirming fine. the state district McConnell 9, transcript The of the years. on three The remittitur issued June court.3 Shortly proceedings sentencing sealed. 1999. deal, plea McConnell accepting this after Supreme Court denied After Nevada operation
was involved with CNU before the remittitur Collier’s motion but arrest. resulted Collier’s issued, petition on he filed a state habeas 28, district court May 1999. state History Procedural petition untimely; as dismissed habeas Proceedings in court A. state petition saying the violated filing appeals.' limit for habeas See time an file immediate direct Collier did not 34:726(1). appealed Collier Nev.Rev.Stat. of the final after Supreme Nevada Court. The Neva- did, however, file a him. mo- against He da Court affirmed. Supreme illegal sentence on tion an to correct under Nev.Rev.Stat. March 199? B. in federal court Proceedings (2004).2 challenged judg- his He 176.555 petition filed a federal habeas failing to list the Collier ment of conviction on district court he and the Nevada federal June which was sentenced statute under his, district court dismissed exceeding as 2000. The challenged he sentence exhaust- petition (including as mixed both statutory limit for convic- the maximum claims), gave ed unexhausted but Col- sentencing revised tions under Nevada’s 453.3385(2). his opportunity an to amend statute, lier Nev.Rev.Stat. He the unexhausted claims and court issued an abandoned Nevada state district remedy sought illegal very in a motion an sen nature of the correct In Nevada motions remedy post-conviction facially available are a tence for relief from a sentence that either illegal facially See Pan sentence. correct illegal assump- or is the result a mistaken State, gallo record, Nev. 930 P.2d v. regarding a criminal defendant's tion State, (1996); 112 Nev. Edwards n. procedural defaults nec- time constraints and (1996). P.2d 323-24 Motions Edwards, essarily apply.” do (and illegal similar sentence correct 324. Collier's motions appeals) occur sentenc were properly were filed and consid- ing they attacks. Pas- but are not collateral by state courts. on the merits ered State, 318, 831 P.2d sanisi v. 108 Nev. (1992). time, During Collier filed a belat- same sentence are not Motions appeal. appeal was dismissed This ed direct procedural hur- subject to the bars and Supreme for lack of by Court limiting types appeals. The Ne- dles other jurisdiction due timeliness. said, Supreme Court "Because of vada pursued those claims the district On face Nevada’s statute limiting court deemed The district exhausted. time to file for -corpus habeas petition relief, court denied Collier’s Collier’s petition state habeas con- barred Nevada’s with the year forms state’s one time limit. petitions must be filed within one See Nev.Rev.Stat. Collier filed year with- of conviction or his habeas year within one of the Nevada Supreme supreme state court’s remittitur on his an appeal appeal. Court, Court’s remittitur from The Nevada how- 34.726(1). ever, judgment. -interpreted See Nev.Rev.Stat. differently law court The district found Nevada’s rule was Collier’s case. The Nevada said adequate and that independent Collier Collier’s habeas- was not prejudice failed to show cause and for the filed under Nev.Rev.Stat. 34.726(1),thus denying pe- default. petitioned for and then tition state procedural grounds.4 received a certificate of Col- appealability. argues lier .this rule was not district court found Collier .had “raised adequately appeal. established showing valid the denial a constitu- *5 argues He the pursuit rule cannot bar his tional right” ineffective assistance of federal habeas relief. The Respondent The counsel. district also the court found . disagrees. . adequacy procedural Nevada’s rule among jurists “could be debatable of rea- We conclude that the rule was not ade- son.” quately ap- established to Collier’s peal. We find nothing plain either the
Analysis language of or Nev.Rev.Stat. 34.726 the The requires State interpretation Nevada courts’ of that stat- petitions year to be filed within one suggest ute to an amended supreme ap- state court’s remittitur would not entitle to a new peal from judgment. taken Nev.Rev.Stat. period pursue to Fur- relief. case, In this thermore, the trial court there is no rule established ' amended Collier’s final on motions sentence do 26, amendment, March 1997. the After qualify judgment, as ah from through Collier continued to pursue tolling period relief thus the for filing a habeas properly a filed illegal petition. motion to correct an The sentence. denied and Col- Adequate independent A. state
lier appealed the Nevada Supreme . grounds Supreme Court. The Nevada Court de- May nied Collier’s on the merits on For a procedural pre state rule 13, thereafter, May 1999. Immediately claims, on vent federal review federal 28, 1999, Collier a peti- filed state habeas rule must both adequate state’s be tion. remittitur from the Su- independent. Coleman v. 501 Thompson, preme 9, 722, 729, Court’s order issued June U.S. 111 115 L.Ed.2d S.Ct. (1991). 1999. 640 has Court held may Federal courts of deciding not review limited whether a conviction Constitution, laws, interpretations state courts’ of state law. The violated treaties said, McGuire, province Court is not the "[I]t States.” Estelle v. 502 United 62, 67-68, of a federal habeas court to reexamine state- U.S. 112 S.Ct. L.Ed.2d 116 Thus, (1991). questions. court determinations on state-law we 385 defer to the state review, conducting In interpretation a federal court court's of state law. (9th Cir.1999), Burns, “this will 179 F.3d context that the habeas question of federal law decid- not review be generally adequate held can a rule if the decision of that ed a state court inadequate particular applied deemed ground that is court on a state law rests Kemna, circumstances, unique Lee question and independent of the federal 151 L.Ed.2d U.S. S.Ct. Id. judgment.”' adequate support (2002). petitioner Once demon explained, applies “The doctrine The Court rule, state inadequacy of a strated when state court to bar federal habeas proving ultimate burden of bears the federal prisoner’s to address declined Muel rule bars federal review. Bennett v. had failed to prisoner claims because Cir.2003).6 ler, 322 F.3d 585-86 Id. requirement.” procedural meet state 729-30, 111 S.Ct. determining ade- This standard for bars well- quacy of state order review, rule federal preclude established federal habeas law. regularly “firmly must established be “a creating dissent accuses the Georgia, Ford v. U.S. followed.” of law which shifts radical new rule 423-24, 111 S.Ct. L.Ed.2d prisoner proof burden of (1991). The has elaborated Ninth Circuit at 1289. The dissent con- State.” Dissent clear, must consistent that “a state rule interpreta- disagreement fuses a over at the time ly and well-established applied, tion of Nevada state conflict law petitioner’s purported default.” In this over the federal habeas standard. v. United States District Court Calderon *6 met opinion hold that Collier his bur- we (9th Cir.1996) (Bean), 1126, 1129 96 F.3d that no state rule was establishing den Maass, v. 28 F.3d (quoting Wells ha- to bar his state adequately established (9th Cir.1994)).5 procedural 1010 If a state Only the petition. then do we shift beas peti rule not well-established before is state, de- the as the standard burden rule, the then the supposedly tioner breaks of merely application This mands. is prevent rule federal review the cannot as it stands the federal habeas standard the Although petitioner’s federal claims. today. holding This makes no new habeas every required state “to articulate is rule,” every v. law. Bargas permutation of explained bur- petitioner must Circuit the state’s argues that the .The Ninth The dissent rule, ap procedural adequacy proving cite bar is den the state cases which for plied inconsistently. at 6245. Incon saying: Dissent principle sistency aspect of the is adequately pled the exis- Once the state has procedural bar must be that a state’s ade-. adequate independent tence of an repeatedly the quate. has said This court ground procedural de- as an affirmative clear, consistently ap state’s rule must fense, place that the burden defense e.g., See Robin plied, and well-established. petitioner. petitioner shifts The issue (9th Cir. Ignacio, F.3d 1052 son v. may satisfy by asserting specific this burden Warden, 2004); v. 288 F.3d Melendez allegations in- factual that demonstrate the Calderon, (9th Cir.2002); v. Jackson including procedure, adequacy of the state Cir.2000). 1153 (9th empha F.3d authority demonstrating incon- citation to the rule sis in the case before us is whether having application Once We, sistent of the rule. obviously, do not was well-established. however, so, is ultimate burden done require petitioner to show inconsis problem state's. tency application when the Lambert, v. 357 F.3d well- Powell is the rule not clear or Mueller, Cir.2004) (quoting v. Bennett applied to the and has never been established (9th Cir.2003)). F.3d unique case. circumstances bar, must in- procedural adequacy general rules also be
State
time
howev-
As
dependent
preclude
er,
federal review.
is not
issue here. The issues for
challenges only
adequacy
specific
are
to the application
review
rule, not
indepen-
Nevada’s
its
First,
this rule
Collier’s case.
was it
dence,
the independence
we
do
address
clear and well-established in Nevada law
prong.
the original
judgment, not the amend-
ed
of conviction
starts
one-
Nevada
is
rule at
Second,
time limit?
was it clear and
one-year
filing
limit
sue is a
time
for
well-established in Nevada
law that mo-
corpus
The relevant law
tion to correct an
does not
states:
toll limit?
good
Unless there is
cause
shown
delay,
challenges
the va- B.
judgments
Amended
lidity
of a
of sentence must be
plain language
of Nev.Rev.Stat.
1 year
filed within
‘
distinguish
does not
between
oí,
judgment of conviction
if an appeal
original
judgments
of conviction and
judgment,
taken from
been
with-
judgments
amended
of conviction. Until
in 1 year
supreme
after the
court issues
recently, there was little in
statu-
purposes
its remittitur. For the
his Of
tory
guidance
or case law to offer
on this
subsection, good
delay
if
cause
exists
Then,
September
issue.7
petitioner
demonstrates
the satis-
published
an opin-
faction of
court:
ion holding that
judgments
(a)
delay
That the
not the
fault of
conviction do not automatically re-start
petitioner; and
timé’ clock under Nev.Rev.Stat.
(b)
That dismissal of the
un-
as
Nevada,
Sullivan
unduly prejudice
petition-
will
(Nev.2004).
Instead,
an amended
er.
judgment of
may,
if proved,
34.726(1). This court previ
Nev.Rev.Stat.
qualify
“good cause” under Nev.Rev.
ously found that
Nevada Supreme
*7
34.726(l)(a),
allowing
Stat.
thus
for addi-
Court
con
generally applies this time limit
appeals.
Supreme
tional
Id. The Nevada
See,
sistently
petitions.
e.g.,
to
,
Court said:
640,
Loveland v.
231 F.3d
643
Hatcher
(9th Cir.2000);
McDaniel,
however,
emphasize,
entry
v.
We
that the
Moran
80
(9th Cir.1996).
1261,
F.3d
judgment
1268-70
of an
may
amended
in and of
1888,
Second,
Supreme
In
the Nevada
Court denied
was sentenced.
the
case
Burbank
is
a new
a civil
motion for
trial in
case where
by
grounds
not cited
the state courts
for
as
wrong
the trial court's clerk had entered the
opinions
the state courts'
in this case. The
Rivers,
judgment.
name on the
Burbank v.
(if
exists)
Burbank rule
rule
is not at
such
159,
(1888).
Nev.
the court held
direct appeals
garding a
record,
criminal defendant’s
qualified
appeals tolling
one-year
time
constraints and
defaults
Id.
limit.10
The Court held:
necessarily 'do
apply.”
Id. at 324. The
We
now construe
[Nev.Rev.Stat.]
Court’s-discussion mo
34.726(1) mean'
that the
peri-
(and
tions
illegal
to correct an
filing
post-conviction
od for
s
-appeals)
like
emphasize
in Edwards
corpus petition begins to run from the
these motions
free
are
from the
issuance of the
various
remittitur from a
direct
constraints and time limits
restricting
this court from the
ac
appeals.
particular
of conviction or from the
cess to other
these
if
conviction no direct
exempted
motions are
from the limitations
Because
case
tolling
appeals,
Dickerson
was decided
lished
mechanisms for direct
after Collier filed his
appeals.
inapplicable
not habeas
It is
to the
sentence,
it is not determinative
question
whether motion to correct an
explore
case.
we
Thus
need not
whether un-
period
filing
sentence tolls the time
*9
der
state
law motions to
Furthermore,
correct an
appeal.
4(b)
a habeas
NRAP
illegal
appeals.
correct,
are
sentence
direct
govern
illegal
does not
motions to
an
motions,
Respondent
as
sentence. Such
Dickerson,
concede,
heavily
11. The
and
dissent relies
on
the dissent
be filed
need not
4(b)
thirty days
114 Nev.
967 P.2d
and the NRAP
as NRAP
within
4(b).
requires.
Dissent at 1298-99. Neither is control-
motions to correct an
Collier's
ille-
ling
gal
timely
here. Dickerson was decided after Col-
were
and were addressed
sentence
4(b)
purported
lier's
by
breach. NRAP
on the
.estab-
merits
the Nevada courts.
Id.;
petition
adequate
pre-
are not
to
Nev.Rev.Stat.
habeas
petitions.
on habeas
34.724(2)(a).
“necessarily
petition.
it
clude federal review of his habeas
Suggesting
discussion
Edwards
from the
rules applying
follows”
Nev.Rev.Stat.
illegal
an
sentence
clear,
to correct
consistently applied,
that motions
not
were
motions)
(and
limit an individual’s
similar
at the time of Collier’s
well-established
completely
ability
pursue habeas relief
.to
When Collier filed his
purported default.
opinion.
the Edwards
miseharacterizes
illegal
to
an
motion
correct
sentence
emphasis
Court’s
The Nevada
petitions,
subsequent
habeas
narrowly- defining
type
on
Edwards is
this
a
under state law habeas
appeared
access
appeal
emphasizing
while
broad
remittitur
from such an
could follow a
under
er-
suffering
to it. Petitioners
The dis-
judgment.
and amended
appeal
to
an
challenged by motions
correct
rors
revérsed and the
opinion
trict court’s
free of the
illegal
are
sentence
on
is remanded for consideration
appeal
types
appeals.
on other
placed
hurdles
the merits.
in-
suggest
to
Edwards
disingenuous
It is
AND REMANDED.
REVERSED
“an
phrase
appeal
been
terpreted the
judgment”
in Nev.Rev.Stat.
taken from
BEA,
Judge, dissenting:
Circuit
to
an
motions
correct
to exclude
major-
I
dissent because the
respectfully
The Nevada
illegal sentence.
a
for writ of
question.
ity’s opinion
petitioner
Twist-
allows
considered no such
to
a
corpus
create such
to mock the Nevada statuto-
ing
court’s words
clear,
ry
not
consis-
a
meaning
filing
does
establish
deadline for
conviction,
by
rule.
tently
simply
and well-established
applied,
to
of motions
filing one or
number
the Dickerson deci-
Today, because of
sentence,
an
no matter how
illegal
correct
sion,
during Collier’s
present
confusion
Henceforth,
meretricious
motions.
Defendant-Appel-
appeal does
exist.12
before the effective
any prisoner convicted
habeas relief
they may pursue
lants know
Nevada,
v.
96 P.3d
date
Sullivan
“from the issuance
year
within
be
(Nev.2004) September
2004—will
direct
remittitur from
—
to
an
to file
correct
able
a baseless motion
of convic-
this court from the
filing
a prelude
illegal sentence
judgment .of
tion or from
petition on
Nevada state habeas
is taken-.”
no
conviction if
direct
ground that
the denial of
motion
Dickerson,
at
1133-34..
a one-
illegal
an
sentence creates
correct
Conclusion
petition.
opportunity to file
majority’s analysis
on
by
disagree
I
applied
rules
The Nevada
major points.
three
courts to bar Collier’s
the Nevada state
If a
every prisoner
the merits
courts.
suggests that
dissent
unlikely
person
replicate
this
September
were able
Nevada convicted
n
they
prior to the
were convicted
pattern
motion to
will be able to file meritless
opinion Dicker-
filing
Supreme Court's
illegal
en route
sentence
Nevada,
114 Nev.
bar is Bennett v. (9th Cir.2003). precise F.3d Only chronology if the events is im- petitioner proves bar portant May is in- in this case. On adequate does the burden shift pleaded guilty then to the Collier to Count I of the n suggest This is not to (July Collier’s motions had run both 1995) sentence were filed dur- (March and the amended ing one-year period when there was time 1997), when Collier filed his habeas "toll,” stop running i.e. of the time to 28,May Indeed, file *11 days appeal file an Information, him then had 30 charged Collier which
Amended conviction or attacking judgment his of and §§ violating NRS 453.3385 with or by filing one 30-day period extend the trafficking a for of possession' 453.3405 which, under NRAP specific' more motions Collier of a controlled substance. quantity 4(b), of running that 30- serve toll plea bargain into a and the State entered day period: 45-year a agreed in which sen- Collier case, of In a criminal the notice attorney exchange, the district tence. filed in by a defendant shall be filed charges the other ten dismissed (30) af thirty days district court within against Collier.2 entry judgment or order ter the of his plea, At Collier entered timely If motion appealed from.... a § under NRS 453.3385 maximum sentence or a new trial on judgment3 arrest of trafficking life drug for a offense was newly any other than discovered ground $100,000 and a fine. NeV. prison Rev. Stat. been, made, evidence4 ' 453.3385(2) (1993). days before Five may be judgment of conviction from a sentenced, legisla- Collier was (30) entry thirty days taken within after law, the maximum changed and ture A mo denying the motion. of an order years. Nev. Rev. sentence became fifteen ground on the tion for a new trial based 453.3385(2)(1995). The new'.ver- Stat. will simi newly of discovered evidence stat- specifically sion of NRS a appeal from larly extend the time for ed, however, apply that it did not of if the motion judgment before, date (30) before its effective offense committed thirty days within made or Infor- Id. Amended July of judgment.... of entry mation, pleaded guilty, Collier which App. 4(b)(l)(1995).- P. Nev. R. of that Collier committed violation stated appeal within not'file a direct Collier-did over §NRS 453.3385 on March of days entry judgment after the of the new the effective date before conviction, a motion nor did he file either Therefore, statute statute. the amended or a motion for new judgment arrest case. apply did not to Collier’s (cid:127) Therefore, right trial. August on expired of conviction judgment with was sentenced in accordance Collier 4,1995.' a final plea agreement, and ' him on against entered did not file a of conviction was Because Collier ' e year after appeal, h then had' one July 1995. The stated file a of conviction to judgriient of his I of the guilty Collier was Count law: under sen- Information and court Amended good cause shown years imprisonment him to 45 tenced Unless there va- challenges $100,000 delay, fine. assessed drug must be filed charged 3. A motion in arrest had with éleven 2.Collier been arrest, trafficking guilt days Collier's offenses. After after determination within methamphetamine, may substantial amount the court fix such time as within further marijuana ephedrine, found in Col- 7-day period. Nev. Rev. during the Stat. shed, storage along weapons with 50 lier’s (1995). § 176.525 de- paraphernalia. I add these narcotics majority opinion lest reader tails trial 4. A for a new that is based away impression come with- newly evidence must filed discovered bystander infelici- was an unfortunate -who finding guilt. days verdict or in 7 after the captive govern- tously to the wares of a fell (1995). § 176.515 Stat. Nev. Rev. plant. ment *12 lidity judgment of or must years sentence the 45 he agreed to earlier. Collier did not of claim that filed within the he was ever confused as to the or, statute under he of which was convict- judgment conviction if an ed. spelled The statutes were out judgment, has been taken from the with- plea Amended Information agreement, in 1 year after the Court issues and Collier himself set them forth his its remittitur. For the of purposes this motion to correct an illegal sentence. subsection, good delay cause for exists if petitioner demonstrates to the satis- (cid:127)On March the Nevada state of faction the court: district court issued an judgment amended conviction, of in effect granting his motion (a) delay That the is not of the fault judgment recite the statute num petitioner; bers under which he was convicted. The (b) That of the dismissal as un- petition judgment specified amended now that Col unduly will prejudice petition- lier had guilty been found of NRS er. §§ .453.3385 and 453.3405. The court did 34.726(1) (1995). Collier not, however, grant Nev. Rev. Stat. part the second of his petition by July failed to file motion; it refused to reduce sen Collier’s right 1996. His to file a habeas by years. tence majority cor .As date, expired good on that absent cause for noted, rectly “the amended judgment did ’ delay. not change the Maj. Op. sentence.” 21, 1997, On March over 8 months after fact, 1282. In of his appeal opportunities and habeas had kept even the original date: expired time, passage because “Dated 5th day July, this Í995.”6 Col Collier a pro filed se motion to correct an lier neither moved for reconsideration of illegal sentence under ÑRS 176.555. In his nor áppeal motion did he the district motion, his Collier forth court’s language set failure rule on his motion to limit years, sentence to 2 pleaded Count I which he had other as guilty. pect the amended He entered on moved the court to amend judg- 26; March 1997. Collier did not file a ment to include the statute numbers to ' 26,1998. before March which pleaded guilty, §§ he 453.3385 ground 453.3405.5 As a second for his 20, 1997, On May Collier filed a second motion, quoted Collier the revised version pro illegal se motion of NRS 453.3385 and moved court on' grounds based the- same as his first limit 2 years, his sentence to down from motion to correct an sentence.7 Why punctiliousness? (1888), Perhaps Collier 20 Nev. 18 P. discussed thought got put that if he the court to date does not infra. change argue statute he number could the now re- when is amended to correct cleri- apply being vised statute would and he was cal-mistake, as.was the case here. illegally. conveniently forgetting held He was statute, terms, that the revised its own did 7.The claims filed this second apply to crimes committed its before ef- "reviving” motion his claims asserted in his (cid:127) July fective date of 1995. Since Collier Maj. Op. March at 1282. motion. 12, 1994, committed the offense -on March To repeat not to revive. His earlier claim regardless whether the statute number was denied; had repetition been it was final. judgment, listed in his the revised statute does of his did claim not "relate back” or other- apply not remember, case. But must acting pro wise seek a Collier was reconsideration his earlier mo- se. just attempt. tion. It second precisely keeping This is with the Nevada Rivers, ruling Court's Burbank good cause for the untimeliness 28, 1997, to show Nevada state dis- May
On September On Col- second trict court denied Collier’s district court’s sentence. from the state district appealed to correct lier *13 specifically denied Collier’s to the Nevada petition court of habeas denial his terms, because, by its on the merits Supreme Court. § not of 453.3385 did version NRS
revised
the denial of
appeal
Collier’s
While
time,
to
case. This
Collier
apply
his
he
petition was pending,
habeas
his state
denying
court’s order
the district
appealed
petition in
district
a habeas
federal
filed
to correct
second motion
his
30,
on June
through counsel
court
10,1997.
on June
28, 2001, the
August
Nevada Su-
On
1998,
16,
a
filed
November
Collier
On
court’s
preme
affirmed
district
Court
original
from his
appeal
of
notice
petition,
state habeas
denial
Collier’s
conviction,
un-
claiming
his
was
untimely un-
petition was
holding that his
trial counsel did
timely because his
34.726(1).
§
der NRS
a
to
right
appeal.
he had
inform Collier
Supreme Court dismissed
Nevada
28, 2003,
.the federal district
On March
untimely
as
under NRAP
peti-
habeas
Collier’s federal
court denied.
3,1999.8
4(b)
February
on
tion,
of Collier’s
holding that the dismissal
petition
under NRS
state
13,
1999,
May
On
34.726(1)
re-
§
federal habeas
precluded
order
affirmed the district court’s
an in-
§NRS
was
view because
to correct
second motion
denying Collier’s
state
adequate
dependent
was
The remittitur
sentence.
good
to show
cause
bar9 and
failed
Collier
11,1999.
on June
issued
state habeas
untimeliness
a
May
.pro
filed
se
Collier
On
petition.
timely appeal
This
followed.
corpus in the
petition for writ of habeas
court,
to
seeking
state district
of Review
II. Standard
charges against
all
him dismissed.
have
his trial counsel
claimed
again
Collier
court’s
de novo the district
We review
right
he
-a
to
to
had
failed
inform him
§
2254 habeas
deny
28 U.S.C.
decision
appeal.
a direct
file
Mueller,
F.3d
v.
Nunes
Cir.2003).
(9th
findings of
We review
August
On
for clear
made
the district court
fact
court dismissed
district
Collier’s.
error,
“may
the district court’s
affirm
untimely
under NRS
by the
any ground supported
on
It
failed
decision
also held
Collier
parties, and thus the notice
power
Court had no
The Nevada
untimely).
enlarge
his direct
the time for Collier to file
App.
26(b) (1995); Walker
appeal.
P.
R.
Nev.
indepen-
procedural bar to be an
a state
9. For
(1983).
Scully,
Nev.
purpose Has the Burden Prove B. Collier doctrine cifically, undermine the it would 34.726(1) Adequate § Is Not NRS by allowing finality judgments peti- of of post-conviction pe- tioners file peti- “Once a majority holds that: The in perpetuity. titions of inadequacy tioner has demonstrated eliminated). (footnotes Id. at 764 rule, the ultimate bears burden the state rule bars federal review.” proving no Ne- majority holds that because Although the ma- Majority Op. at 1284. had ruled that court before Sullivan vada standard, 34.726(1) mis- jority properly § cites language of NRS plain today all convictions referring 10. The court in enacts for pre Sullivan was Sullivan, supra. “absurdity” majority earlier than cisely embraces proof by 34.726(1) applies pleading § the burden of because Collier One NRS as a inadequacy has established the never procedural bar.- Collier has carry failed to Majority Op. NRS See Step burden under Two.
1284, n. 6. Indeed, have previously we held that reference, I For ease reiterate the independent -and regarding Ninth Circuit’s standard adequate state procedural barring proving adequacy burden a state - federal habeas review. See Loveland v. rule: Hatcher, (9th Cir.2000); F.3d adequately pled 7). the state Once McDaniel, Moran 80 F.3d of an independent existence and ade- (9th Cir.1996). majority’s conclusion is procedural ground state an af- quate directly at odds with Loveland and Moran. defense, place firmative the burden to concludes that because a peti- defense issue shifts (cid:127) presenting precise case factual petitioner may tioner. The satisfy this situation had not been previously decided by asserting specific alle- burden factual Court, the-Nevada the law gations inadequacy demonstrate the must not- be well-established. But procedure, including citation precise (cid:127)cannot be the rule. The factual authority demonstrating inconsistent situations involved Loveland and Moran application having the rule. Once had not been decided to those cases so,,however, the ultimate done burden Nevertheless, either. we held that NRS the state’s. barred federal review of those Mueller, Bennett v. 322 F.3d *16 cases. Cir.2003) added). (emphasis only Moran, difference between Thus, Step pleads One the state a Loveland this case is that Collier filed procedural bar. The burden then shift- illegal two motions to correct an sentence petitioner. Step ed to the Two is where rather than the one in motion'filed those petitioner must demonstrate the inade- cases. This makes difference no more dis- bar, quacy procedural of the state includ- tinction than fact that Collieh is hot ing authority demonstrating “citation to named Loveland dr Moran. application inconsistent rule.” already soundly rejected This court has skips completely Step over argument procedural to ,bar that Two, step requiring petitioner who be “well-established” a state court must (here claims a clearly state bar have a particular attempt ruled that to 34.726(1)) § in stated NRS is not ade- circumvent that bar is invalid. quate, prove to the inadequacy of the bar. Burns, In Bargas v. F.3d any Collier has not alleged specific factual a, Cir.1999), petitioner made simi any cases, us allegations or cited to nor attempt lar to circumvent proce Nevada’s any, can we find where the Nevada Su- pleaded, dural bars. guilty sexu Bargas preme apply failed NRS al assault in Nevada state court. He then 34.726(1), § so that one could conclude filed a petition, claiming state habeas 34.726(1) § NRS was not “well-estab- he had ineffective assistance counsel and Nor has lished.” he cited cases where that his not plea knowing was and volun Court allowed a mo- tary. Id. at This petition 1209-10. illegal tion to correct an was re- denied, start either the an but the trial- court failed file Thus, specifically the time to file a claim petition. habeas his of ineffective assis Step carried burden under Bargas appealed its tance of counsel. to the Court, holding petitioner proeedurally that a but on the knowing he to appeal his- was not defaults claim when fails plea ground that relief, his claim of voluntary. post-conviction He failed raise the denial of Ne- of counsel. The assistance files ineffective and instead a second affirmed the denial of Supreme Court Although agree corpus. vada habeas we Id. at petition. conclusion, his neverthe- Nevada law clearly requires petitioner to raise less a habeas then filed Bargas petition, all in his he claims first unless ineffective assistance alleging court federal prejudice can demonstrate cause and The district court dismissed of- counsel. that his of inef- holding claim petition, his unex- of counsel was Id. at 1211. The same is true here. Sim-
fective assistance
to assert
previous-
he failed
court had
ply
hausted because
because no Nevada
highest court.
Id.
Nevada’s
to correct
ly
claim before
stated that
second motion
sentence does not re-start or toll
petition,
the time which
file habeas
peti-
a second habeas
Bargas then filed
motion,
any more than a first such
does
“revive,”
court,
attempting
in state
tion
not well-established.
not mean
law was
his second motion to
did in
as Collier
34.726(1)
4(b)
§
and NRAP
are both
NRS
sentence,
claim that
his
quite clear
what alone will toll the
about
of counsel and
had ineffective assistance
he
peti-
time to file an
knowing and volun-
his
not
plea
was
All
to do
tion.
Collier had
was read
Bargas
held that
The trial court
tary.
Id.
Although
relevant statutes.
Sullivan was
ineffec-
defaulted on his
proeedurally
had
was convict-
decided at
time Collier
claim
counsel
assistance
tive
of.
34.726(1)
ed,
well-established.
NRS
was
to rule on that issue
failure
appealing the
well
passed
Id.
first
in 1995.
before Collier was convicted
peti-
a second habeas
Bargas then filed
plain language of NRS
court,
he
again claiming
had
federal
tion
an illegal
that motions to correct
shows
and that
assistance
counsel
ineffective
*17
do
or toll the time
sentence
not re-start
voluntary.
and
knowing
not
plea
his
was
supra,
file
petition.
which to
a habeas
See
petition
the
district court denied
34.726(1)
only
§
that
p.
states
1282. NRS
plea
know-
Bargas’
that
was not
the claim
the time in which to file a
appeal
tolls
voluntary,
refused to reach the
but
ing
majority opinion is
habeas
of counsel
ineffective assistance
issue
§
possibilities into
reading
NRS
by an inde-
that claim was barred
because
plain language of that statute
that
the
adequate
pendent
no cases
the
precludes. There are
where
appeal,
Id. On
we
bar —NRS
Supreme
allowed such
ruling
court’s
the district
affirmed
second, identical and
motion to cor-
denied
petitioner’s fed-
jurisdiction
no
to hear
had
or toll
rect an
sentence
re-start
on the issue of ineffec-
habeas-petition
eral
appeal
to file either an
time which
of counsel because Neva-
tive assistance
4(b)(1)
under NRAP
had
petitioner
law that a habeas
da’s
34.726(1). Further,
al-
his
under
all
first
was
raise
his claims
majority
states that “Collier
established,”
though
though
even
no Nevada
“well
an illegal
motion to correct
that a
filed a second
yet
had
held
second
case
challenge to his sen-
reviving
not “revive” such claims:
petition did
1282),
Op. at
(Majority
...”
tence
argues
that there
not
[Bargas]
are
timely-filed
mo-
was not
second motion
specifically
in Nevada
reported cases
tion to reconsider the denial of
rights
his first
and obligations which
Thus,
motion.
it could not “revive” his
judgment
plainly
had
properly
settled
first motion. Accordingly, we are bound with finality.” 640
Here,
P.2d at 1324.
by Loveland and Moran.
judgment
amended
of conviction did
legal rights
revise the
parties.
Illegal
C. A Motion to Correct an
Sen-
majority
opinion dismisses Edwards
tence Does Not Re-Start or Toll the
case,
because it
awas
civil
but there is no
Appeal
Time in
to File an
Which
reason
principles
the same
would
apply
plain
Because the
language of NRS to a criminal case.
appeal
states
will toll
Further,
opinion dismisses
time which to file a
petition,
a similar
holding
a criminal case Bur-
we must examine whether Collier’s direct
Rivers,
159,
bank v.
753,
20 Nev.
18 P.
appeal from
judgment
his
of conviction
(1888),
dusty
old law. Majority Op. at
was a valid
under Nevada law.
It
1285, n. 7.
the majority opinion
What
re-
was not.
fuses to acknowledge is that Burbank is
Under either
original judgment
good
Burbank,
still
law.
conviction,
5,
July
entered on
or the
Supreme Court held that when a technical
judgment
conviction,
amended
entered
change is
judgment
made to a
of convic-
26, 1997,
on March
tion, the
conviction,
time within which an
judgment
appeal may
filed on No-
untimely
vember
and was be taken
from the
of conviction
Apr
4(b).
therefore of no effect. Nev. R.
P.
computed
from the date of
This rule was
well-established
the time
original judgment
not the amended
of Collier’s conviction even under the ma-
judgment,
party filing
unless the
ap-
jority’s holding that there must be a case peal can show that he was “deceived” or
saying
State,
so. See Lozada v.
110 Nev.
“misled”
the original judgment as en-
(1994).
Rivers,
tered.
Burbank v.
20 Nev.
Moreover,
(1888)
P.
(holding that
conviction did not re-start
period
the time
that was amended to state the defendant’s
for Collier to file a
direct
attacking
correct name did not start the time to file
his judgment of conviction under NRAP 4.
anew). Remember,
an appeal
The Nevada
Court addressed a
(March
change in the amended judgment
Edwards,
similar situation in Morrell v.
1997)
was to add the section number
(1982). There,
Nev.
us petition). file a habeas period which time. by operation of in Dickerson held: The court only way appeal that Collier’s could 34.726(1) now construe NRS We if timely is his second mo- considered for one-year period filing mean sentence, that illegal which an tion corpus petition post-conviction 20, 1997, first May revived was filed on begins to run from issuance to file an then the time in which tolled timely appeal to remittitur from a direct conviction. from his appeal of convic- this court from NRAP But that cannot be ease—under A appeal if is taken. tion no direct 4(b), only judg- motions in arrest of timely appeal is one in which the direct time in new trial toll the ment or for a filed the district appeal notice of is p. 1290. appeal. supra an See which file period prescribed the time court within Further, states See, 4.... e.g., NRAP statute. rule that motions “there is no established “ap- untimely no appeal, the case of an an sentence do not to correct judgment” had taken from the peal been judgment, from thus qualify an 34.726(1) meaning NRS within the pe- tolling period filing nothing happened. because has at This Majority Op. tition.” Moreover, construe the statute First, as two reasons. dis- incorrect for lead to absurd re way other would above, a motion to correct ille- cussed .... to in sults If the referred presupposes guilt was gal sentence wheth any appeal, meant An proved admitted. not, jurisdiction or er this obtained court Second, even judgment posits innocence. petitioners would be able to file succes if a motion to appeal year sive notices of appeal, as an qualify were the one- perpetually and thus re-start correct an il- failed to file his motion to Clearly, this period. year limitation 30-day time legal sentence within the In legislature not what the envisioned. 4(b) therefore, as limit under NRAP deed, already noted that court has appeal, motion was of no effect. periods intended statutory are hozada, “In the P.2d at 946. case results. such prevent such “Without untimely appeal, ‘appeal of an no had post- availability on the limitations within judgment’ been taken from remedies, pe could prisoners because meaning of NRS perpetuity tition for and thus relief Dickerson v. nothing happened.” Loza post-conviction remedies.” abuse State, 967 P.2d Nev. State, P.2d da 110 Nev. [v. (defendant (1998) who convicted of (1994) ]. untimely murder filed an degree second Dickerson, 1133-34. then filed writ appeal, and Although true Dickerson was year of it is corpus within one first case to hold that appeal, issuance of the remittitur on *19 in which timely appeal direct tolls the time year not one of his but within petition a under conviction; court to file habeas NRS the Nevada trial dis- 34.726(1), simply relying § untimely Dickerson was missed the habeas as 34.726(1) 34.726(1); § plain language of NRS § the Nevada Su- under NRS affirmed, 4(b), the in- interpreting that un- and NRAP holding preme Court 34.726(1) it enacted legislature § when tent language der NRS
1299
4(b). By concluding
Nevada
NRAP
that
Prior to and at the time of Collier’s
1995,
not
well-established
Col-
conviction in
law was
was well-established
majority
over-
law that
appeal,
opinion
specified
lier’s
motions
plain
NRAP 4
toll
language
looks
of NRS
would
the time in which to
34.726(1)
4(b)(1).
See,
file a
appeal.
§
and NRAP
It would
notice of
e.g., Chapman
Co.,
judicial
arrogant
454,
a
view of
Indus. v. United Ins.
supremely
110 Nev.
(1994)
curiam) (a
739,
say
only judges
can 874 P.2d
741
importance
(per
Law
in the motion for
make law.
does
have to be
reconsideration is not a tolling
4(a)
judge’s
a
NRAP
binding.
form of
decision to be
motion under
and therefore
and rules are also
does not re-start or toll
binding.
Statutes
the time in which
appeal);
file a notice of
Holiday Inn
Here,
majority’s analysis,
under the
a
Barnett,
Downtown v.
103 Nev.
prisoner can
defeat
completely
Nevada
(1987)
curiam) (a
P.2d
(per
mo
4(b),
both NRS
and NRAP
tion
to vacate
order affirming an admin
repeatedly re-start the time in
to file
which
istrative decision is not a tolling motion
petition, simply
filing
a
4(a)
under NRAP
and therefore
does
correct an illegal
motion to
sentence and
re-start or toll the time in which to file a
appealing
then
the denial of that motion—
notice of
This
appeal).
was all well-estab
grounds alleged
even if the
in the motion
lished
at the time
law
of Collier’s convic
an illegal
have
sentence could
tion.
brought up
appeal
been
direct
conviction,
or an
IV. Conclusion
motion,
appeal from identical
earlier
majority opinion
allows petitioner
is
here.
the case
an expired right
resurrect
to file
is no need for
There
such a rule. Under
petition attacking
law, petitioners
who can show
simply by
conviction
filing a motion to
good
delay
cause for the
can
the one-
avoid
sentence. This
con-
is
limitation under NRS
trary to Nevada law and to this court’s
Dickerson,
114 Nev.
holdings in Loveland and Moran.
Although
majority acknowledges
good
To
establish
cause to excuse
power
no
guess
we have
to second
law,
procedural default under
“a
law,
interpretations
state court
of state
must
defendant
demonstrate that some
McGuire,
62, 67-68, 112
Estelle v.
U.S.
impediment
pre-
external to the defense
(1991),
S.Ct.
L.Ed.2d
him from complying
pro-
vented
with the
exactly
what the
does. It second
cedural rule that has been violated.” ho-
4(b),
guesses
and NRAP
zada,
Here,
P.2d at 946.
Collier has
not to
our own
proof
mention
burden of
good
because,
not shown
cause
under Ne-
Mueller,
rule stated in Bennett v.
F.3d
law,
vada
the failure of
counsel to advise
Cir.2003).
573, 586
defendant that
right
criminal
he has the
to file a direct
good
original July
is not
cause
If
judg-
Collier’s
failing
considered,
to file a
within ment of
year after judgment
conviction. November
1998 notice of
Dickerson,
NRAP one-year filed well after the
petition was 34.726(1). in NRS
deadline judg- 1997 amended
If the March (which it conviction is considered
ment of be), Collier’s November
should not appeal was filed after notice of 4(b), NRAP
thirty-day deadline filed was still
May in NRS one-year deadline deadline at all times well-estab- law, way you look at
lished
case, Ac- missed deadline. respectfully I dissent.
cordingly, TILLMAN, Repre L. Personal
Betina Filipe the ESTATE OF
sentative Deceased, TILLMAN, Plaintiff-Ap
M.
pellant, MUSIC, INC.,
CAMELOT
Defendant-Appellee, Stores, Inc., Amicus Curiae.
Wal-Mart
No. 03-5172. Appeals, States Court of
United
Tenth Circuit.
May