1 2 3 4 5 6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA

8 * * * 9 DONOVAN JOSEPH, Case No. 2:18-cv-02301-KJD-EJY

10 Petitioner, ORDER

11 v. 12 BRIAN WILLIAMS, et al., 13 Respondents. 14 15 Before the court is respondents’ motion to dismiss parts of two grounds in 16 Donovan Joseph’s

habeas corpus petition as conclusory (ECF No. 17 11). The court concludes that these claims are sufficiently pled; therefore, the motion to 18 dismiss is denied. 19 I. Background & Procedural History 20 On June 11, 2014, a jury convicted Joseph of 3 counts of sexual assault and 1 21 count of open or gross lewdness1 (exhibit 56).2 The state district court sentenced him to 22 3 terms of 10 years to life and 364 days for the lewdness count, all to run concurrently. 23 Exh. 70. Judgment of conviction was filed on February 3, 2015. Exh. 77. 24 25 26 1 The jury also convicted Joseph of 1 count coercion sexually motivated—the State asked the court at 27 sentencing to disregard that count due to insufficient evidence, and 1 count battery with intent to commit a crime—the court threw out that count at sentencing due to a misleading jury form. Exh. 70. 1 The Nevada Court of Appeals affirmed Joseph’s convictions, and the Nevada 2 Supreme Court affirmed the denial of his state postconviction habeas corpus petition. 3 Exhs. 100, 140. 4 Joseph dispatched his federal habeas corpus petition for filing in November 2018 5 (ECF No. 1). Respondents now move to dismiss certain claims in the petition as 6 conclusory (ECF No. 11). Joseph opposed, and respondents replied (ECF No. 17, 18). 7 II. Legal Standards & Analysis 8 In federal habeas proceedings, notice pleading is not sufficient. Mere conclusions of 9 violations of federal rights without specifics do not state a basis for federal habeas relief. 10 Mayle v. Felix,

(2005). A petition may be summarily dismissed if the 11 allegations in it are “vague, conclusory, palpably incredible, patently frivolous or false.” 12 Hendricks v. Vasquez,

(9th Cir. 1990) (internal citations omitted); see 13 also Blackledge v. Allison,

(1977). 14 Ground 1 15 Ground 1 alleges several instances of ineffective assistance of counsel (ECF No. 1, 16 pp. 3-9). Respondents challenge ground 1(A) as conclusory. In ground 1(A)(1) Joseph 17 contends that trial counsel failed pursue a limiting instruction regarding testimony about 18 the victim’s clothing, and in ground 1(A)(2) he argues that appellate counsel failed to 19 challenge the trial court’s failure to give a limiting instruction on appeal (ECF No. 1, pp. 20 4-5). 21 In ground 1(B) Joseph argues that trial counsel failed to object to several instances 22 of prosecutorial misconduct. Respondents challenge ground 1(B)(3) that trial counsel 23 failed to object to the State referring to video from the Foundation Room in closing 24 arguments (ECF No. 1, p.7). Joseph claims that the State’s argument suggested the 25 existence of additional incriminating evidence, while in Joseph’s view additional video 26 from the Foundation Room would have supported the defense’s theory of the case had 27 it been produced.

1 The court rejects respondents’ challenges to these claims of ineffective assistance of 2 || counsel. The claims might not be models of clarity, but they set forth sufficient specific 3 || factual allegations and refer to the state-court record. They are not patently frivolous or 4 || false. The court declines to dismiss any portions of ground 1 as conclusory. 5 Ground 3 6 Respondents challenge ground 3(A) in which Joseph argues that trial counsel was 7 || ineffective because he failed to investigate what defense witness Jeff Fogel knew (ECF 8 || No. 1, pp. 13-15). Respondents are correct that the petition refers to the attached 9 || declaration of Fogel, but the declaration was not in fact attached. However, the petition 10 || itself sets for the specific factual allegations about Fogel’s knowledge. See

The 11 || court also declines to dismiss ground 3. 12 Ground 4 is a claim that the cumulative effect of alleged errors warrants habeas 13 || relief. /d. at 21. As no claims are subject to dismissal at this time as conclusory, the 14 || court need not consider any part of the cumulative error claim. 15 lil. Conclusion 16 IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 11) 17 || is DENIED: 18 IT IS FURTHER ORDERED that respondents shall have 60 days from the date 19 || this order is entered within which to file an answer to petition. 20 IT IS FURTHER ORDERED that petitioner shall have 45 days following service 21 || of respondents’ answer in which to file a reply. 22 23 DATED: 25 February 2020. 2 Lud 25 KENTJ.DAWSON □□□ UNITED STATES DISTRICT JUDGE

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