United States v. 2005-05-09 | 04-15053 | HIGH VIGNACIO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JUAN X. HIGH, No. 04-15053
Petitioner-Appellant, D.C. No.
v.  CV-00-00346-LRJ
JOHN IGNACIO, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
November 4, 2004—San Francisco, California
Filed May 10, 2005
Before: Betty B. Fletcher, Sidney R. Thomas, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
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COUNSEL
Franny Forsman and John Lambrose (argued), Federal Public
Defender, Las Vegas, Nevada, for the petitioner.
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Brian Sandoval and Robert E. Wieland (argued), Nevada
Attorney General, Reno, Nevada, for the respondent.
OPINION
BEA, Circuit Judge:
Juan High appeals the denial of his petition for a writ of
habeas corpus filed under 28 U.S.C. § 2254. High’s state peti-
tion for post-conviction relief was dismissed by the Nevada
trial court as untimely under Nevada Revised Stat-
ute 177.315(3), which required Nevada petitioners for post-
conviction relief to file their petition in the Nevada trial court
“within 1 year after entry of judgment of conviction or, if an
appeal has been taken from such judgment, within 1 year after
the final decision upon or pursuant to the appeal” whichever
is later. The Nevada Supreme Court affirmed this dismissal.
The district court then denied High’s federal habeas peti-
tion, holding that NEV. REV. STAT. 177.315(3) was an indepen-
dent and adequate state procedural rule that barred federal
review of the Nevada court’s dismissal of High’s petition for
post-conviction relief. Under the independent and adequate
state procedural bar doctrine, a federal court will not review
a question of federal law raised in a state court “if the decision
of that court rests on a state law ground that is independent
of the federal question and adequate to support the judgment.”
Coleman v. Thompson, 501 U.S. 722, 729 (1991).1
High challenges NEV. REV. STAT. 177.315(3), arguing that
1For a state procedural bar to be “adequate”, the rule must be “clear,
consistently applied, and well-established at the time of petitioner’s pur-
ported default.” Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994). A
state procedural rule is adequate if the state courts follow it “in the vast
majority of cases.” Moran v. McDaniel, 80 F.3d 1261, 1270 (9th Cir.
1996).
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the Nevada courts have applied the rule in an inconsistent
manner. Therefore, the question before us2 is a narrow one:
Whether the Nevada Supreme Court consistently applied NEV.
REV. STAT. 177.315(3), Nevada’s statute of limitations for ini-
tiating a petition for post-conviction relief. We hold that the
Nevada Supreme Court has consistently applied NEV. REV.
STAT. 177.315(3).3
I
Following a jury trial, High was found guilty of five counts
of burglary, six counts of robbery with the use of a weapon,
one count of conspiracy, and one count of sexual assault with
the use of a deadly weapon. He was sentenced to a total of
123 years in prison, plus two life sentences with the possibil-
ity of parole on December 30, 1983. High filed an appeal
through counsel to the Nevada Supreme Court, which
affirmed his conviction and sentence on August 20, 1985. The
remittitur was issued September 10, 1985.
Almost six years later, on April 25, 1991, High filed a pro
se petition in Nevada trial court for post-conviction relief pur-
suant to NEV. REV. STAT. 177.315. At that time, NEV. REV.
STAT. 177.315(3) read:
Unless there is good cause shown for delay, a pro-
ceeding under NRS 177.315 to 177.385, inclusive,
must be filed within 1 year after entry of judgment
of conviction or, if an appeal has been taken from
such judgment, within 1 year after the final decision
upon or pursuant to the appeal.
2High also briefed issues for which a certificate of appealability was not
granted. In light of our opinion, we decline to extend the certificate of
appealability to include those issues.
3NEV. REV. STAT. 177.315(3) was repealed January 1, 1993.
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NEV. REV. STAT. ANN. 177.315(3) (Michie 1991) (repealed
1993).
The form High used for his petition specifically advised
him that if he did not file his petition within this one year
period, he should relate facts to demonstrate good cause for
his failure to file his petition within that time period. In
response, the reasons High put forth illustrating why he filed
his petition almost six years after his appeal are essentially
that he did not have counsel for his post-conviction petition,
and therefore he was unaware of his legal rights and responsi-
bilities.
On June 6, 1991, the Nevada trial court dismissed High’s
petition as untimely. On September 30, 1991, the Nevada
Supreme Court affirmed, holding, inter alia, that High’s peti-
tion was untimely pursuant to NEV. REV. STAT. 177.315. The
court considered each of High’s reasons for the delay and
found that, “none of the reasons stated by appellant, either
singly or together, is sufficient to justify appellant’s extraordi-
nary delay in filing his petition.”
On July 16, 1993, High filed a habeas corpus petition in
federal district court pursuant to 28 U.S.C. § 2254. High then
filed a voluntary motion to dismiss the petition without preju-
dice, which was granted on January 27, 1997.
High went back to Nevada state trial court to file another
petition for post-conviction relief under NEV. REV.
STAT. 177.315 on March 11, 1997. The trial court denied his
petition as “barred on procedural grounds” on July 14, 1997.
The Nevada Supreme Court affirmed the trial court’s dis-
missal on May 10, 2000.
While his second state court petition for post-conviction
relief was pending, High filed a second § 2254 habeas corpus
petition in federal district court on March 21, 1997. The dis-
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trict court dismissed this petition without prejudice for failure
to exhaust state remedies on March 26, 1998.
High filed his third state petition for post-conviction relief
under NEV. REV. STAT. 177.315 on December 8, 1999. The
trial court denied the action as untimely on March 9, 2000.
The Nevada Supreme Court affirmed the trial court’s finding
of untimeliness on August 8, 2001.
On June 19, 2000, High filed his third § 2254 federal
habeas corpus petition.4 After briefing on the issue, the district
court dismissed most of High’s grounds as untimely and not
exhausted, finding that Nevada had consistently applied NEV.
REV. STAT. 177.315(3). The district court held that NEV. REV.
STAT. 177.315(3) constituted an independent and adequate
state procedural bar, and that the denial of High’s habeas cor-
pus petition would not result in a fundamental miscarriage of
justice because High had failed to establish a cause which,
under Nevada law, would excuse his failure to comply with
the time limits of NEV. REV. STAT. 177.315(3). High’s remain-
ing grounds were later dismissed on the merits.
This court granted a certificate of appealability on the nar-
row issue of whether the district court erred in determining
NEV. REV. STAT. 177.315(3) was consistently applied in 1991,
at the time High’s first state petition for post-conviction relief
was denied. To be “adequate”, NEV. REV. STAT. 177.315(3)
must have been applied in a consistent manner both at the
time High’s direct appeal was denied in 1985, and at the time
his state petition for post-conviction relief was denied as
untimely in 1991. Petrocelli v. Angelone, 248 F.3d 877,
885-86 (9th Cir. 2001). We will therefore consider both time
periods in this appeal.
4Because High’s first two federal habeas corpus petitions were dis-
missed without prejudice due to his voluntary dismissal and his failure to
exhaust state remedies, this third habeas corpus petition did not qualify as
a second or successive habeas corpus petition. Slack v. McDaniel, 529
U.S. 473, 488 (2000).
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We review the district court’s decision to deny a 28 U.S.C.
§ 2254 habeas corpus petition de novo, including issues of
law and the proper application of the law to the facts. Nunes
v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003). We review
findings of fact made by the district court for clear error. Id.
Once the state pleaded the application of an independent
and adequate state procedural bar in NEV. REV.
STAT. 177.315(3), the burden of proof switched to High to
prove the Nevada courts had applied NEV. REV.
STAT. 177.315(3) in an inconsistent manner and had indeed
allowed the filing of a late petition where no good cause was
shown. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003).5
[1] Unfortunately for High, the Nevada Supreme Court has
consistently affirmed the denials of petitions for post-
conviction relief as untimely under NEV. REV.
STAT. 177.315(3). See, e.g., Colley v. State, 773 P.2d 1229,
1230 (Nev. 1989) (per curiam); Jones v. State, 536 P.2d 1025,
1025-26 (Nev. 1975) (per curiam). High does not cite, nor
have we been able to find, any published cases in which the
Nevada Supreme Court reversed a trial court’s denial of post-
conviction relief based on NEV. REV. STAT. 177.315(3), where
the trial court had correctly calculated the one-year period and
had afforded the petitioner an opportunity to show good cause
for his delay in filing for post-conviction relief.
[2] In the absence of any authority showing that the Nevada
Supreme Court has applied NEV. REV. STAT. 177.315(3) in a
manner that is inconsistent with this case, we must presume
that the state procedural rule is adequate.
5If High had met his burden of proof, then the burden would have
shifted back to the state to prove the rule was in fact adequate. The ulti-
mate burden is on the state. Bennett, 322 F.3d at 586. Here, because High
did not meet his burden to prove the inadequacy of NEV. REV.
STAT. 117.315(3), the burden never shifted back to the state.
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High contends that the application of NEV. REV.
STAT. 177.315(3) to his case is inconsistent with the Nevada
Supreme Court’s application of the analogous statute of limi-
tations that applies to state habeas corpus petitions filed in
Nevada. See NEV. REV. STAT. 34.726(1) (Michie 1991). For
this proposition, High cites Glauner v. State, 813 P.2d 1001
(Nev. 1991) (per curiam) and Birges v. State, 820 P.2d 764,
765-66 (Nev. 1991) (per curiam). This argument has already
been rejected by this court. See Loveland v. Hatcher, 231 F.3d
640, 643 (9th Cir. 2000); Moran v. McDaniel, 80 F.3d 1261,
1269-70 (9th Cir. 1996).
[3] We hold that NEV. REV. STAT. 177.315(3) has been con-
sistently applied by the Nevada state courts and that it is an
independent and adequate state procedural bar for the purpose
of federal habeas corpus petitions filed under 28 U.S.C.
§ 2254.
If the state court finds a petitioner’s claims barred by an
independent and adequate state procedural rule, federal
review of that claim is barred unless the petitioner can demon-
strate a cause for the default, and prejudice as a result of the
alleged violation of federal law, or that failure to consider the
claim will result in a fundamental miscarriage of justice. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Franklin v.
Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
Here, High was given an opportunity to explain to the state
court why his petition was late, on the very form he used to
file the petition. He did not provide a legally adequate reason.
“A showing of cause ‘must ordinarily turn on whether the
prisoner can show that some objective factor external to the
defense impeded [the prisoner’s] efforts to comply with the
State’s procedural rule.’ ” Pizzuto v. Arave, 280 F.3d 949, 975
(9th Cir. 2002) (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). “Thus, cause is an external impediment such as gov-
ernment interference or reasonable unavailability of a claim’s
factual basis.” Id.
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The Nevada Supreme Court determined that High’s reasons
did not constitute good cause for his untimeliness under
Nevada law. There are no Nevada cases where good cause
was found on facts similar to High’s arguments. This court
accepts a state court ruling on questions of state law. Moran,
80 F.3d at 1268.6
AFFIRMED.
6The district court later appointed counsel to represent High on his
§ 2254 federal habeas corpus petition, and counsel was expressly given an
opportunity to brief the reasons for High’s untimely petition in the state
court before the district court ruled. High failed to establish any legally
adequate reason for his failure to assert his claims in his state petition in
a timely manner. Additionally, High does not argue that the failure to con-
sider his claims would result in a fundamental miscarriage of justice.
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