1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 JOSHUA CALEB SHUE, Case No. 2:20-cv-02025-KJD-BNW

4 Petitioner, ORDER v. 5 CALVIN JOHNSON, et al., 6 Respondents. 7 8 9 I. SUMMARY 10 This is a habeas corpus action under

. Currently before the Court 11 is Respondents' motion to dismiss Grounds I and III as unexhausted. (ECF No. 27.)1 12 Petitioner Joshua Shue acknowledges that he has not exhausted Ground I or Ground III, 13 but he argues that both grounds would be procedurally barred in the state courts without 14 excuse. The Court defers determination of whether Petitioner can excuse the procedural 15 default of Grounds I and III to the answer and reply. Also before the Court is a joint motion 16 for leave to extend discovery deadlines. (ECF No. 38.) The Court grants this motion. 17 II. BACKGROUND 18 The State of Nevada charged Petitioner with one count of child abuse, 29 counts 19 of use of a child in production, one count of open or gross lewdness, and 10 counts of 20 possession of visual presentation depicting sexual conduct of a child. (ECF No. 29-6.) 21 Following a trial, a jury found Petitioner guilty of all 41 counts. (ECF No. 35-2.) 22 Petitioner appealed, and the Clark County Public Defender’s Office was appointed 23 to represent him for his direct appeal. (ECF No. 24-2.) Petition raised the following claims 24 in his appeal: 25 1. Nevada laws prohibiting using a minor as the subject of a sexual portrayal in a 26 performance are unconstitutional. 27

1 Petitioner filed an opposition (ECF No. 41), and Respondents filed a reply (ECF 1 2. Appellant’s redundant convictions violated his due process rights. 2 3. The district court committed reversible error by failing to instruct the jury on 3 essential elements of the crime and by refusing Appellant’s theory of defense 4 instructions. 5 4. The State committed prosecutorial misconduct. 6 5. The district court’s evidentiary decisions denied Appellant his Constitutional right 7 to a fair trial. 8 6. The Indictment failed to provide Appellant with adequate notice. 9 7. As a matter of law the images do not depict a sexual portrayal or sexual conduct. 10 8. The State presented insufficient evidence of guilt. 11 9. Cumulative error. 12 (Id.) Petitioner later added a claim that: “Appellant’s simultaneous possession of 10 13 images of alleged child pornography at one time and one place constitutes a single 14 violation of NRS 200.730.” (ECF No. 24-4 at 3.) The Nevada Supreme Court vacated 15 nine of Petitioner’s convictions for possession of visual presentation depicting sexual 16 conduct of a child and his conviction for open or gross lewdness but affirmed the 17 remaining charges. (ECF No. 24-5 at 18.) 18 Following the Nevada Supreme Court’s decision on Petitioner’s direct appeal, he 19 requested appointment of counsel to pursue post-conviction relief. (ECF No. 37-4.) The 20 state district court denied the request for appointment of counsel. (ECF No. 37-7.) 21 Petitioner filed a pro se post-conviction petition for a writ of habeas corpus in state district 22 court. (ECF No. 37-8.) The state district court denied the petition. (ECF No. 37-19.) 23 Petitioner appealed the denial, and the Nevada Supreme Court affirmed Petitioner’s 24 convictions but determined that the second amended judgment of conviction improperly 25 denoted restitution as a fine and remanded the case to correct the error. (ECF No. 24- 26 10.) 27 Petitioner then commenced this action. This Court appointed the Federal Public 1 III. LEGAL STANDARD 2 Before a federal court may consider a petition for a writ of habeas corpus, the 3 petitioner must exhaust the remedies available in state court. See

(b). 4 To exhaust a ground for relief, the petitioner must fairly present that ground to the state’s 5 highest court, describing the operative facts and legal theory, and give that court the 6 opportunity to address and resolve the ground. See Duncan v. Henry,

, 365 7 (1995) (per curiam); Anderson v. Harless,

(1982). "[I]f a claim is 8 unexhausted but state procedural rules would now bar consideration of the claim, it is 9 technically exhausted but will be deemed procedurally defaulted unless the petitioner can 10 show cause and prejudice." Cooper v. Neven,

(9th Cir. 2011). 11 IV. DISCUSSION 12 A. The Court Defers Ruling on Ground I 13 1. Petitioner did not present Ground I to state courts 14 Ground I is a claim that Petitioner received ineffective assistance of trial counsel 15 because his attorney failed to consult a computer forensic expert. (ECF No. 23 at 7.) 16 Petitioner asserts that the forensic report of his computer included findings related to 17 dates that are factually impossible, but that his attorney failed to consult a computer 18 forensic expert to assess the forensic report or seek an explanation for the impossible 19 dates. (Id. at 7-10.) Petitioner acknowledges that he did not present this claim in his 20 state post-conviction proceedings. (ECF No. 41 at 4.) 21 2. Ground I is technically exhausted 22 Petitioner notes that if he returned to state court to exhaust Ground I, then the state 23 courts would find his new post-conviction petition to be untimely under NRS § 34.726(1) 24 and successive under NRS § 34.810. (ECF No. 41 at 5.) Both of these statutes allow a 25 court to excuse the procedural bars upon a showing of cause and prejudice. In Nevada, 26 a claim of ineffective assistance of trial counsel must be brought in a collateral review, 27 rather than direct appeal. See Pellegrini v. Nevada,

(Nev. 2001) 1 post-conviction petition”). Petitioner’s only argument for cause and prejudice is that he 2 did not have counsel for his post-conviction habeas corpus petition. The Nevada 3 Supreme Court has not accepted ineffective assistance of post-conviction counsel as an 4 excuse to the procedural bars of NRS § 34.726 and NRS § 34.810. See Brown v. 5 McDaniel,

(Nev. 2014). Because Nevada’s procedural rules would now bar 6 the claim, Ground I is technically exhausted. 7 3. Ground I is procedurally defaulted 8 Because the state courts would deny relief based upon state-law reasons that are 9 adequate and independent of federal law, Ground I is procedurally defaulted. This Court 10 cannot consider Ground I unless Petitioner can show cause and prejudice. In federal 11 courts the lack of post-conviction counsel can be cause and prejudice to excuse a 12 procedurally defaulted claim of ineffective assistance of trial counsel. See Martinez v. 13 Ryan,

(2012). Petitioner makes this argument. (ECF No. 41 at 6-11.) 14 Respondents argue that an analysis of prejudice under Martinez is intertwined with the 15 merits of the underlying claim. (ECF No. 46 at 3.) As such, Respondents request that 16 the Court defer analysis of prejudice under Martinez until after they file an answer to the 17 petition. (Id.) The Court will defer a decision on whether Petitioner can overcome the 18 procedural default of Ground I until after the petition is fully briefed on the merits. 19 B. The Court Defers Ruling on Ground III 20 1. Petitioner did not present Ground III to state courts 21 Ground III is a claim that the punishment that Petitioner received is excessive and 22 therefore violates his right to be free from cruel and unusual punishment. (ECF No. 23 at 23 15.) Petitioner acknowledges that he did not present this claim in his state post-conviction 24 proceedings. (ECF No. 41 at 11.) 25 2. Ground III is technically exhausted 26 Petitioner notes that, as with Ground I, the state courts would dismiss a new post- 27 conviction petition raising Ground III as untimely under NRS § 34.726(1) and successive 1 procedure remains for Petitioner to raise his claim in Ground III in the state courts. 2 Because Nevada’s procedural rules would now bar the claim, Ground III is technically 3 exhausted. 4 3. Ground III is procedurally defaulted 5 Because the state courts would deny relief based upon state-law reasons that are 6 adequate and independent of federal law, Ground III is procedurally defaulted. This Court 7 cannot consider Ground III unless Petitioner can show cause and prejudice. In federal 8 courts the ineffective assistance of appellate counsel can serve as cause for a procedural 9 default where the claim of ineffective assistance itself is exhausted. Murray v. Carrier, 10

(1986). Petitioner makes this argument. (ECF No. 41 at 12-13.) 11 Petitioner argues that, in his pro se state court petition for a writ of habeas corpus, he 12 argued that his appellate counsel was deficient for failing to argue that a life sentence 13 was excessive for his crime and constituted cruel and unusual punishment. (Id. at 13.) 14 Respondents acknowledge that ineffective assistance of appellate counsel can 15 establish cause to overcome a procedurally defaulted claim. (ECF No. 46 at 4.) However, 16 Respondents argue that Petitioner has failed to establish that appellate counsel was 17 ineffective for failing to raise the claim that Petitioner’s sentence violated his right against 18 cruel and unusual punishment. (Id. at 4.) Respondents further argue that Petitioner 19 cannot establish prejudice because the claim that Petitioner’s sentence violated his right 20 against cruel and unusual punishment is without merit. (Id. at 5.) Both of these arguments 21 go to the merits of the underlying claim that Petitioner’s sentence violated his right against 22 cruel and unusual punishment is without merit. As such, the Court will defer a decision 23 on whether Petitioner can overcome the procedural default of Ground III until after the 24 petition is fully briefed on the merits. 25 C. Joint Motion to Extend Discovery 26 The parties filed a joint motion requesting a 90-day extension to comply with the 27 Court’s discovery order. (ECF No. 49.) The motion states that because of the sensitive 1|| material from inside an FBI building, and the process of receiving access to the building 2|| and scheduling time to review the digital content has caused delays in completing 3|| discovery. (/d. at 2-3.) Good cause appearing, the Court grants the motion. V. CONCLUSION 5 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 27) 6|| DENIED. Ground | is unexhausted but is technically exhausted because it would be 7|| procedurally barred by the state courts. Ground Ill is unexhausted but is technically || exhausted because it would be procedurally barred by the state courts. 9 It is further ordered that the Court defers consideration of whether Petitioner can 10|| demonstrate cause and prejudice under Martinez v. Ryan,

(2012) to overcome || the procedural default of Ground | until after the filing of an answer and reply in this action. 12 It is further ordered that the Court defers consideration of whether Petitioner can demonstrate cause and prejudice under Murray v. Carrier,

(1986) to 14|| overcome the procedural default of Ground III until after the filing of an answer and reply 15|| in this action. 16 It is further ordered that, within GO days of entry of this order, Respondents must 17|| file an answer addressing all claims in the amended petition on the merits, under a de 18|| novo standard of review as to Grounds | and III, and also addressing whether Grounds | and Ill are barred by procedural default under federal law. It is further ordered that Petitioner will have 30 days from service of the answer within which to file a reply. 21 It is further ordered that the parties’ joint motion for a 90-day extension to comply with this Court's discovery order (ECF No. 49) is granted. 23 24 DATED this 6th day of September 2022. NN 25 KK 26 KentJ.Dawson i (ai‘C;~™ 37 United States District Judge 28