Collier v. Bayer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN W. COLLIER,  No. 04-15017

Petitioner-Appellant, D.C. No.

v.  CV-99-00641-ECR/

BOB BAYER, RAM

Respondent-Appellee.

 OPINION

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, District Judge, Presiding

Argued and Submitted

November 4, 2004—San Francisco, California

Filed June 3, 2005

Before: Betty B. Fletcher, Sidney R. Thomas, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge B. Fletcher

Dissent by Judge Bea

6215

COLLIER v. BAYER 6217

COUNSEL

Franny A. Forsman and John C. Lambrose, Las Vegas,

Nevada, for the petitioner-appellant.

6218 COLLIER v. BAYER

Brian Sandoval and Robert E. Wieland, Reno, Nevada, for the

respondent-appellee.

OPINION

B. FLETCHER, Circuit Judge:

Petitioner-Appellant Stephen Wayne Collier appeals from

the decision of the United States District Court for the District

of Nevada, which denied his petition for a writ of habeas cor-

pus under 28 U.S.C. § 2254. The district court denied Col-

lier’s habeas petition for failing to comply with the State of

Nevada’s time limits for pursuing habeas relief. Collier chal-

lenges the adequacy of Nevada’s time limit for filing habeas

corpus appeals and the tolling provisions provided therein.

Further, he argues cause and prejudice to excuse his purported

procedural default.

We have jurisdiction pursuant to 28 U.S.C. § 2253. We

reverse the district court’s decision and hold that the particu-

lar application of Nevada’s time limits and tolling provisions

in Collier’s case was not adequately established prior to his

appeal. Because we reverse on this ground, we do not reach

the question of whether Collier had cause or suffered preju-

dice.

Standard of Review

Federal district court decisions denying 28 U.S.C. § 2254

habeas petitions for procedural default are reviewed de novo.

Fields v. Calderon, 125 F.3d 757, 759-60 (9th Cir. 1997).

Factual findings underlying the decision are reviewed for

clear error. Luna v. Cambra, 306 F.3d 954, 959 (9th Cir.

2002). Mixed questions of law and fact involving constitu-

tional issues are reviewed de novo. Tomlin v. Myers, 30 F.3d

1235, 1241 (9th Cir. 1994).

COLLIER v. BAYER 6219

Factual Background

Collier pursues this habeas appeal from a judgment based

on a plea and sentence of forty-five years for trafficking in

controlled substances. Collier and co-defendant, Christopher

Glen Hammond, pled guilty to selling methamphetamine to a

government informant, Gary McConnell. Collier and Ham-

mond sold drugs to McConnell on March 12, 1994, while

McConnell was working with Nevada’s Consolidated Narcot-

ics Unit (“CNU”). McConnell worked with the CNU as part

of a plea bargain for trafficking charges pending against him.

During the transaction Collier gave drugs to Hammond, who

then gave them to McConnell. McConnell paid for the drugs

with money given him by the CNU. McConnell testified

against Collier and Hammond at their preliminary hearing on

June 9, 1994.

Collier faced a several count information. He was able to

negotiate a plea bargain. He pled guilty to one count of drug

trafficking and he agreed to a forty-five-year prison sentence.

The additional charges against Collier were dropped. Collier’s

co-defendant pled guilty to a similar charge and he agreed to

a ten-year prison sentence.

Five days before Collier was sentenced, a new Nevada law

went into effect reducing the minimum and maximum prison

sentences for several criminal offenses. The sentence for the

offense to which Collier pled guilty was dramatically reduced.

The minimum was reduced from ten years to two years. The

maximum was reduced from life to fifteen years.1 This statute

1

The amended statute says: “[I]f the quantity involved . . . [i]s 14 grams

or more, but less than 28 grams, for a category B felony by imprisonment

in the state prison for a minimum term of not less than 2 years and a maxi-

mum term of not more than 15 years and by a fine of not more than

$100,000.” Nev. Rev. Stat. 453.3385(2) (1995).

Previously, the statute read: “If the quantity involved . . . is 14 grams

or more, but less than 28 grams, by imprisonment in the state prison for

life or for a definite term of not less than 10 years and by a fine of not less

than $100,000.” Nev. Rev. Stat. Ann. 453.3385(2) (Michie 1993).

6220 COLLIER v. BAYER

went into effect July 1, 1995. The revised statute does not

apply to any offense committed before the effective date.

1995 Nev. Stat. ch. 443 § 393. Attempts by Collier to chal-

lenge his sentence based on the amended statute have failed.

Collier was originally represented by attorney Sferrazza.

Sferrazza withdrew as counsel in early 1995 because he took

a job in the public sector. The court appointed the county pub-

lic defender’s office to represent Collier. Three different attor-

neys from the public defender’s office represented Collier

during his preliminary hearing, plea negotiations, and sen-

tencing. The final attorney to represent Collier was attorney

Mitchell. Mitchell appeared with Collier at his July 5, 1995

sentencing. Mitchell had previously represented McConnell,

the government’s informant, and had helped McConnell nego-

tiate a plea against several drug trafficking charges in early

1994. As part of the plea bargain, McConnell pled guilty to

one count of drug trafficking. The plea resulted in several

charges being dropped and the suspension of a five year

prison sentence and $50,000 fine. McConnell was placed on

probation for three years. The transcript of the sentencing pro-

ceedings is sealed. Shortly after accepting this plea deal,

McConnell was involved with the CNU operation that

resulted in Collier’s arrest.

Procedural History

A. Proceedings in state court

Collier did not file an immediate direct appeal after entry

of the final judgment against him. He did, however, file a

motion to correct an illegal sentence on March 21, 1997 under

Nev. Rev. Stat. 176.555 (2004).2 He challenged his judgment

2

In Nevada motions to correct an illegal sentence are a post-conviction

remedy available to correct a facially illegal sentence. See Pangallo v.

State, 930 P.2d 100, 102 n.2 (Nev. 1996); Edwards v. State, 918 P.2d 321,

323-24 (Nev. 1996). Motions to correct an illegal sentence (and similar

COLLIER v. BAYER 6221

of conviction for failing to list the statute under which he was

sentenced and he challenged his sentence as exceeding the

maximum statutory limit for convictions under Nevada’s

revised sentencing statute, Nev. Rev. Stat. 453.3385(2). The

Nevada state district court issued an amended judgment of

conviction, listing the proper statute, on March 26, 1997. The

amended judgment did not change the sentence. A few

months later, Collier filed a second motion to correct an ille-

gal sentence reviving the challenge to his sentence as exceed-

ing the maximum statutory limit. The state district court

considered the merits of this motion and held the amended

law did not apply to Collier. He appealed. Two years later, the

Nevada Supreme Court denied Collier’s appeal on the merits,

affirming the state district court.3 The remittitur issued on

June 9, 1999.

After the Nevada Supreme Court denied Collier’s motion

but before the remittitur issued, he filed a state habeas petition

on May 28, 1999. The state district court dismissed the habeas

petition as untimely, saying the petition violated the one-year

time limit for filing habeas appeals. See Nev. Rev. Stat.

34.726(1). Collier appealed to the Nevada Supreme Court.

The Nevada Supreme Court affirmed.

appeals) occur after a conviction and sentencing but they are not collateral

attacks. Passanisi v. State, 831 P.2d 1371, 1373 (Nev. 1992).

Motions to correct an illegal sentence are not subject to the time bars

and procedural hurdles limiting other types of appeals. The Nevada

Supreme Court said, “Because of the very nature of the remedy sought in

a motion for relief from a sentence that is either facially illegal or is the

result of a mistaken assumption regarding a criminal defendant’s record,

time constraints and procedural defaults necessarily do not apply.”

Edwards, 918 P.2d at 324. Collier’s motions to correct an illegal sentence

were properly filed and were considered on the merits by the Nevada state

courts.

3

During this same time, Collier filed a belated direct appeal. This appeal

was dismissed by the Nevada Supreme Court for lack of jurisdiction due

to timeliness.

6222 COLLIER v. BAYER

B. Proceedings in federal court

Collier filed a federal habeas petition in the Nevada federal

district court on June 30, 2000. The district court dismissed

the petition as mixed (including both exhausted and unex-

hausted claims), but gave Collier an opportunity to amend his

petition. He abandoned the unexhausted claims and pursued

only those claims the district court deemed exhausted. The

district court denied Collier’s habeas petition as barred by

Nevada’s procedural rule that habeas petitions must be filed

within one year of the judgment of conviction or within one

year of the Nevada Supreme Court’s remittitur from an appeal

from judgment. See Nev. Rev. Stat. 34.726(1). The district

court found Nevada’s rule was adequate and independent and

that Collier failed to show cause and prejudice for the default.

Collier then petitioned for and received a certificate of

appealability. The district court found Collier had “raised a

valid showing of the denial of a constitutional right” for inef-

fective assistance of counsel. The district court also found the

adequacy of Nevada’s procedural rule “could be debatable

among jurists of reason.”

Analysis

The State of Nevada requires habeas petitions to be filed

within one year of the state supreme court’s remittitur in an

appeal taken from judgment. Nev. Rev. Stat. 34.726(1). In

this case, the trial court amended Collier’s final judgment on

March 26, 1997. After the amendment, Collier continued to

pursue relief through a properly filed motion to correct an ille-

gal sentence. The motion was denied and Collier appealed to

the Nevada Supreme Court. The Nevada Supreme Court

denied Collier’s appeal on the merits on May 13, 1999. Imme-

diately thereafter, on May 28, 1999, Collier filed a state

habeas petition. The remittitur from the Nevada Supreme

Court’s order issued on June 9, 1999.

COLLIER v. BAYER 6223

On the face of Nevada’s statute limiting the time to file for

habeas corpus relief, Collier’s state habeas petition conforms

with the state’s one year time limit. See Nev. Rev. Stat.

34.726(1). Collier filed his habeas petition within one year of

the state supreme court’s remittitur on his appeal. The Nevada

Supreme Court, however, interpreted the law differently in

Collier’s case. The Nevada Supreme Court said Collier’s state

habeas petition was not timely filed under Nev. Rev. Stat.

34.726(1), thus denying Collier’s habeas petition on state pro-

cedural grounds.4 Collier argues this procedural rule was not

adequately established prior to his appeal. He argues the rule

cannot bar his pursuit of federal habeas relief. The Respon-

dent disagrees.

We conclude that the rule was not adequately established

prior to Collier’s appeal. We find nothing in either the plain

language of Nev. Rev. Stat. 34.726 or the Nevada courts’

interpretation of that statute to suggest that an amended judg-

ment would not entitle Collier to a new one year time period

to pursue habeas relief. Furthermore, there is no established

rule that motions to correct an illegal sentence do not qualify

as an appeal from judgment, thus tolling the period for filing

a habeas petition.

A. Adequate and independent state grounds

For a state procedural rule to prevent federal review of fed-

eral claims, the state’s rule must be both adequate and inde-

pendent. Coleman v. Thompson, 501 U.S. 722, 729 (1991).

The Supreme Court has held in the habeas context that “this

Court will not review a question of federal law decided by a

4

Federal courts of appeal may not review state courts’ interpretations of

state law. The Supreme Court said, “[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law ques-

tions. In conducting habeas review, a federal court is limited to deciding

whether a conviction violated the Constitution, laws, or treaties of the

United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, we

defer to the state court’s interpretation of state law.

6224 COLLIER v. BAYER

state court if the decision of that court rests on a state law

ground that is independent of the federal question and ade-

quate to support the judgment.” Id. The Court explained, “The

doctrine applies to bar federal habeas when a state court

declined to address a prisoner’s federal claims because the

prisoner had failed to meet a state procedural requirement.”

Id. at 729-30.

[1] In order for a state procedural rule to preclude federal

review, the rule must be “firmly established and regularly fol-

lowed.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991). The

Ninth Circuit has elaborated that “a state rule must be clear,

consistently applied, and well-established at the time of the

petitioner’s purported default.” Calderon v. United States Dis-

trict Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quot-

ing Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)).5 If

a state procedural rule is not well-established before a peti-

tioner supposedly breaks the rule, then the rule cannot prevent

federal review of the petitioner’s federal claims. Although the

state is not required “to articulate every permutation of every

rule,” Bargas v. Burns, 179 F.3d 1207, 1213 (9th Cir. 1999),

a rule held generally adequate can be deemed inadequate as

applied to particular unique circumstances, Lee v. Kemna, 534

U.S. 362, 376 (2002). Once a petitioner has demonstrated the

inadequacy of a rule, the state bears the ultimate burden of

5

The dissent argues that the petitioner must cite cases in which a proce-

dural bar is applied inconsistently. Dissent at 6245. Inconsistency is only

one aspect of the principle that a state’s procedural bar must be adequate.

This court has repeatedly said the state’s rule must be clear, consistently

applied, and well-established. See e.g., Robinson v. Ignacio, 360 F.3d

1044, 1052 (9th Cir. 2004); Melendez v. Warden, 288 F.3d 1120, 1122

(9th Cir. 2002); Jackson v. Calderon, 211 F.3d 1148, 1153 (9th Cir. 2000).

The emphasis in the case before us is whether the rule was well-

established. We, obviously, do not require a habeas petitioner to show

inconsistency in application when the problem with the rule is that the rule

is not clear or well-established and has never been applied to the unique

circumstances of his case.

COLLIER v. BAYER 6225

proving the rule bars federal review. Bennett v. Mueller, 322

F.3d 573, 585-86 (9th Cir. 2003).6

This standard for determining the adequacy of state proce-

dural bars is well-established in federal habeas law. The dis-

sent accuses the majority of creating “a radical new rule of

law which shifts the burden of proof from the prisoner to the

State.” Dissent at 6233-34. The dissent confuses a disagree-

ment over the interpretation of Nevada state law with a con-

flict over the federal habeas standard. In this opinion we hold

that Collier met his burden by establishing that no state rule

was adequately established to bar his state habeas petition.

Only then do we shift the burden to the state, as the standard

demands. This is merely an application of the federal habeas

standard as it stands today. This holding makes no new

habeas law.

State procedural rules must also be independent to preclude

federal review. As Collier challenges only the adequacy of

Nevada’s procedural rule, not its independence, we do not

address the independence prong.

The Nevada procedural rule at issue is a one-year time limit

for filing a habeas corpus petition. The relevant law states:

6

The Ninth Circuit explained the state’s burden for proving the ade-

quacy of a state rule, saying:

Once the state has adequately pled the existence of an indepen-

dent and adequate state procedural ground as an affirmative

defense, the burden to place that defense in issue shifts to the

petitioner. The petitioner may satisfy this burden by asserting

specific factual allegations that demonstrate the inadequacy of the

state procedure, including citation to authority demonstrating

inconsistent application of the rule. Once having done so, how-

ever, the ultimate burden is the state’s.

Powell v. Lambert, 357 F.3d 871, 875 (9th Cir. 2004) (quoting Bennett v.

Mueller, 322 F.3d 573, 586 (9th Cir. 2003).

6226 COLLIER v. BAYER

Unless there is good cause shown for delay, a peti-

tion that challenges the validity of a judgment of

sentence must be filed within 1 year after entry of

the judgment of conviction or, if an appeal has been

taken from the judgment, within 1 year after the

supreme court issues its remittitur. For the purposes

of his subsection, good cause for delay exists if the

petitioner demonstrates to the satisfaction of the

court:

(a) That the delay is not the fault of the

petitioner; and

(b) That dismissal of the petition as

untimely will unduly prejudice the peti-

tioner.

Nev. Rev. Stat. 34.726(1). This court previously found that

the Nevada Supreme Court generally applies this time limit

consistently to habeas petitions. See, e.g., Loveland v.

Hatcher, 231 F.3d 640, 643 (9th Cir. 2000); Moran v.

McDaniel, 80 F.3d 1261, 1268-70 (9th Cir. 1996). The ade-

quacy of this general time bar, however, is not at issue here.

The issues for review are specific to the application of this

rule in Collier’s case. First, was it clear and well-established

in Nevada law that the original judgment, not the amended

judgment of conviction starts the one-year time limit? Second,

was it clear and well-established in Nevada law that a motion

to correct an illegal sentence does not toll the one-year time

limit?

B. Amended judgments

[2] The plain language of Nev. Rev. Stat. 34.726(1) does

not distinguish between original judgments of conviction and

amended judgments of conviction. Until recently, there was

little in Nevada statutory or case law to offer guidance on this

COLLIER v. BAYER 6227

issue.7 Then, on September 3, 2004, the Nevada Supreme

Court published an opinion holding that amended judgments

of conviction do not automatically re-start the time clock

under Nev. Rev. Stat. 34.726(1). Sullivan v. Nevada, 96 P.3d

761, 764 (Nev. 2004). Instead, an amended judgment of con-

viction may, if proved, qualify as “good cause” under Nev.

Rev. Stat. § 34.726(1)(a), thus allowing for additional

appeals. Id. The Nevada Supreme Court said:

We emphasize, however, that the entry of an

amended judgment may in and of itself provide the

good cause required by that statute to present appro-

priate post-conviction claims relating to the amend-

ment at issue. In other words, if the claims presented

in a petition filed within one year of the entry of the

amended judgment challenge the proceedings lead-

ing to a substantive amendment of the judgment and

could not have been raised in prior proceedings,

there may be no delay attributable to the “fault of the

petitioner.”

7

In 1888, the Nevada Supreme Court denied a motion for a new trial in

a civil case where the trial court’s clerk had entered the wrong name on

the judgment. Burbank v. Rivers, 18 P. 753 (Nev. 1888). The Nevada

Supreme Court found the clerical error did not extend the time for filing

an appeal. Id. at 755. The court said that to prevail on such a basis, the

petitioner must “affirmatively show, to the satisfaction of this court, that

he was deceived or misled by the entry as made.” Id. Burbank is not

instructive in the case before us. First, the amendment to Collier’s judg-

ment was not a clerical error. The trial court failed to include the basis for

the judgment: the statute under which Collier was sentenced. Second, the

Burbank case is not cited by the state courts as grounds for the state

courts’ opinions in this case. The Burbank rule (if such a rule exists) is not

at issue here. Finally, the Burbank case has not been cited by a Nevada

state court since 1921. See Bottini v. Mongolo, 197 P. 702, 704 (Nev.

1921). Nowhere is it cited in the State’s briefing materials. The dissent’s

shaking the dust off a century old rule, not used by the state courts in

eighty years, does not establish the rule as adequate under federal habeas

law. We do not reject the rule because it is old, we reject it because it is

not well-established.

6228 COLLIER v. BAYER

Id. As Sullivan was decided only recently, such a rule cannot

be held clearly and well-established at the time Collier filed

his motion to correct an illegal sentence in 1997. Notably, the

Nevada Supreme Court does not cite a single statute, rule, or

case standing for the proposition that amended judgments of

conviction do not automatically re-start the one-year time

clock under Nev. Rev. Stat. 34.726(1). The two cases noted

in the discussion, Dickerson v. State, 967 P.2d 1132 (Nev.

1998) and Pelligrini v. State, 34 P.3d 519 (Nev. 2001), are

cited only to illustrate the legislature’s general intent in enact-

ing Nev. Rev. Stat. 34.726(1). Sullivan, 96 P.3d at 764 nn.7

& 10-11. There is scant evidence that amended judgments of

conviction did not re-start the one-year clock at the time of

Collier’s default.

[3] The dissent would give substantial weight to Morrell v.

Edwards, 640 P.2d 1322 (Nev. 1982). In that case, the

Nevada Supreme Court created a rule governing when the

time for an appeal in the civil context may start anew after an

amended judgment. The court stated that whether “an appeal

is properly taken from an amended judgment rather than the

judgment originally entered depends upon whether the

amendment disturbed or revised legal rights and obligations

which the prior judgment had plainly and properly settled

with finality.” Id. at 1324. The Nevada Supreme Court has

never applied this standard in a criminal case. The standard

for criminal cases, as established in 2004, is whether the

issues presented in the appeal relate to a substantive change

in the amended judgment. Sullivan, 96 P.3d at 764. Rules for

civil appeals do not dictate procedure for criminal habeas

appeals. The Nevada Supreme Court has specifically said,

“this court has consistently and repeatedly held that rules of

civil appellate procedure are not applicable to appeals from

statutory post-conviction habeas corpus proceedings.” Klein v.

Warden, 43 P.3d 1029, 1033 (Nev. 2002). The rule establish-

ing when amended judgments allow a new period to file

habeas appeals was decided by the Nevada Supreme Court’s

COLLIER v. BAYER 6229

holding in Sullivan in 2004.8 Because this rule was not ade-

quately established, if at all, prior to 2004, it cannot bar fed-

eral habeas review in Collier’s case.9

C. Motions to correct an illegal sentence

[4] The second procedural rule at issue is whether a motion

to correct an illegal sentence tolls the one-year clock under

Nev. Rev. Stat. 34.726(1). The question is whether a motion

to correct an illegal sentence is an “appeal . . . from the judg-

ment” as stated in Nev. Rev. Stat. 34.726(1). Collier’s

motions to correct an illegal sentence were properly filed

under Nevada state law. The state district court considered

Collier’s first motion and amended his judgment of convic-

tion. Both the Nevada district court and the Nevada Supreme

Court considered his second motion and denied it on the mer-

its. Collier filed his federal habeas petition after the Nevada

Supreme Court’s remittitur on his state habeas petition. When

Collier filed his motion to correct an illegal sentence, there

was little in Nevada’s state law to guide the courts’ under-

standing of whether these motions are an appeal from judg-

ment, thus tolling the period for filing a habeas petition under

Nev. Rev. Stat. 34.726(1). Then, after Collier filed his motion

to correct an illegal sentence, the Nevada Supreme Court gave

8

The first footnote of the Nevada Supreme Court’s opinion states that

the court had previously disposed of the case in an unpublished disposition

on March 5, 2004. The government then filed a motion seeking publica-

tion of the decision. “Cause appearing, [the Court granted] the State’s

motion to publish.” Sullivan, 96 P.3d at 762 n.1. The cause for publication

is not mentioned. Given the lack of guidance on this issue in prior opin-

ions, the need for publication is consistent with the need to establish the

rule.

9

The dissent suggests that because Collier cannot show cases illustrating

an inconsistent application of such a rule Collier’s claim fails. Dissent at

6244-45. The dissent completely ignores the well-established prong of the

standard for determining adequacy. See supra at 6239-40. Collier has

shown this state procedural rule did not exist prior to 2004 and the govern-

ment has failed its burden to show it was adequately established.

6230 COLLIER v. BAYER

form to these words in Dickerson v. State, 967 P.2d at 1133-

34. There the court held only timely direct appeals qualified

as appeals tolling the one-year time limit.10 Id. The Court

held:

We now construe [Nev. Rev. Stat.] 34.726(1) to

mean that the one-year period for filing a post-

conviction habeas corpus petition begins to run from

the issuance of the remittitur from a timely direct

appeal to this court from the judgment of conviction

or from the entry of the judgment of conviction if no

direct appeal is taken. A timely direct appeal is one

in which the notice of appeal is filed with the district

court within the time period prescribed by statute.

Id. Dickerson was decided in 1998 and Collier filed his

motion to correct an illegal sentence in 1997.11 Collier cannot

be held accountable for rules established after his purported

breach. See Ford v. Georgia, 498 U.S. 411, 424 (1991);

Petrocelli v. Angelone, 248 F.3d 877, 885 (9th Cir. 2001).

The government concedes it was in Dickerson where the

tolling provisions in Nev. Rev. Stat. 34.726(1) were narrowed

to apply only to a “timely direct appeal.” Dickerson, 967 P.2d

10

Because the Dickerson case was decided after Collier filed his motion

to correct an illegal sentence, it is not determinative in this case. Thus we

need not explore whether under Nevada state law motions to correct an

illegal sentence are direct appeals.

11

The dissent relies heavily on Dickerson, 967 P.2d 1132, and the

NRAP 4(b). Dissent at 6251-53. Neither is controlling here. Dickerson

was decided after Collier’s purported breach. NRAP 4(b) established toll-

ing mechanisms for direct appeals, not habeas appeals. It is inapplicable

to the question of whether a motion to correct an illegal sentence tolls the

time period for filing a habeas appeal. Furthermore, NRAP 4(b) does not

govern motions to correct an illegal sentence. Such motions, as the

Respondent and the dissent concede, need not be filed within thirty days

of judgment as NRAP 4(b) requires. Collier’s motions to correct an illegal

sentence were timely and were addressed on the merits by the Nevada

courts.

COLLIER v. BAYER 6231

at 1133. Nonetheless, the government argues such a rule “nec-

essarily follows” from a prior Nevada Supreme Court deci-

sion in Edwards v. State, 918 P.2d 321 (Nev. 1996). In

Edwards, the Nevada Supreme Court explained that motions

to correct an illegal sentence are special because they attack

a sentence that is “either facially illegal or is the result of a

mistaken assumption regarding a criminal defendant’s record,

time constraints and procedural defaults necessarily do not

apply.” Id. at 324. The Nevada Supreme Court’s discussion of

motions to correct an illegal sentence (and like appeals) in

Edwards emphasizes that these motions are free from the var-

ious constraints and time limits restricting access to other

appeals. In particular these motions are exempted from the

limitations on habeas petitions. Id.; Nev. Rev. Stat.

34.724(2)(a). Suggesting it “necessarily follows” from the

discussion in Edwards that motions to correct an illegal sen-

tence (and similar motions) limit an individual’s ability to

pursue habeas relief completely mischaracterizes the Edwards

opinion. The Nevada Supreme Court’s emphasis in Edwards

is on narrowly defining this type of appeal while emphasizing

broad access to it. Petitioners suffering under the errors chal-

lenged by motions to correct an illegal sentence are free of the

procedural hurdles placed on other types of appeals. It is dis-

ingenuous to suggest Edwards interpreted the phrase “an

appeal has been taken from the judgment” in Nev. Rev. Stat.

34.726(1) to exclude motions to correct an illegal sentence.

The Nevada Supreme Court considered no such question.

Twisting the court’s words to create such a meaning does not

establish a clear, consistently applied, and well-established

rule.

Today, because of the Dickerson decision, the confusion

present during Collier’s appeal does not exist.12 Defendant-

12

The dissent suggests that every prisoner in Nevada convicted prior to

September 3, 2004 will be able to file a meritless motion to correct an ille-

gal sentence en route to filing a state habeas petition. Dissent at 6232-33.

This assertion is unwarranted. In this case, the petitioner’s motion to cor-

6232 COLLIER v. BAYER

Appellants know they may pursue habeas relief only within

one year “from the issuance of the remittitur from a timely

direct appeal to this court from the judgment of conviction or

from the entry of the judgment of conviction if no direct

appeal is taken.” Dickerson, 967 P.2d at 1133-34.

Conclusion

The Nevada procedural rules applied by the Nevada state

courts to bar Collier’s habeas petition are not adequate to pre-

clude federal review of his habeas petition. The rules applying

Nev. Rev. Stat. 34.726(1) were not clear, consistently applied,

and well-established at the time of Collier’s purported default.

When Collier filed his motion to correct an illegal sentence in

1997 and subsequent habeas petitions, it appeared under state

law a habeas petition could follow a remittitur from such an

appeal and amended judgment. The district court’s opinion is

reversed and the appeal is remanded for consideration on the

merits.

REVERSED AND REMANDED.

BEA, Circuit Judge, dissenting:

I respectfully dissent because the majority’s opinion allows

a petitioner for writ of habeas corpus to mock the Nevada

rect an illegal sentence was granted and he filed his second motion to cor-

rect an illegal sentence within the one-year period for filing an appeal. His

motions were properly filed and considered on the merits by the Nevada

state courts. If a person were able to replicate this unlikely pattern and

they were convicted prior to the Nevada Supreme Court’s opinion in Dick-

erson v. Nevada, 967 P.2d 1132 (Nev. 1998) (holding motions to correct

an illegal sentence are not an appeal from a judgment) then they could and

should be able to file their habeas appeal. No state rule was established to

the contrary prior to the Dickerson opinion.

COLLIER v. BAYER 6233

statutory deadline for filing a habeas petition from a judgment

of conviction, simply by filing one or any number of motions

to correct an illegal sentence, no matter how meretricious the

motions. Henceforth, any prisoner convicted before the effec-

tive date of Sullivan v. Nevada, 96 P.3d 761 (Nev. 2004)—

September 3, 2004—will be able to file a baseless motion to

correct an illegal sentence as a prelude to filing a Nevada state

habeas petition on the ground that the denial of his motion to

correct an illegal sentence creates a one-year opportunity to

file a habeas petition. I disagree with the majority’s analysis

on three major points.

First, it was well-established in Nevada law that a motion

to correct an illegal sentence did not either re-start or toll1 the

one-year time limit in which to file a habeas petition under

Nevada Revised Statute (“NRS”) § 34.726(1). The majority

opinion confuses appeals and habeas petitions, both of which

are used to attack the merits of a judgment of conviction, with

a motion to correct an illegal sentence, which is used only

when the judgment contains a sentence that is invalid under

the statutory sentencing scheme, or when the district court

sentenced the defendant based on a misunderstanding of the

defendant’s prior criminal record. Just as important, there is

no basis in the language of NEV. REV. STAT. § 34.726(1) to

conclude that a motion to correct an illegal sentence either re-

starts or tolls the time in which to file a state habeas petition.

Second, the majority opinion arrives at its conclusion by

placing the burden on the State to cite this court to a prior

case in which Collier’s precise argument was rejected by the

Nevada Supreme Court to prove that Nevada’s one-year time

1

This is not to suggest that Collier’s motions to correct an illegal sen-

tence were filed during the one-year period when there was time to “toll,”

i.e. stop the running of the time to file a habeas petition. Indeed, the one

year had run both from the judgment (July 5, 1995) and the amended judg-

ment (March 26, 1997), when Collier filed his habeas petition on May 28,

1999.

6234 COLLIER v. BAYER

limit to file a habeas petition under NRS § 34.726(1) was

well-established law. This is a radical new rule of law which

shifts the burden of proof from the prisoner to the State, with-

out the benefit of an en banc or Supreme Court ruling that

mandates such a burden shift. Heretofore, where the State has

pleaded a procedural bar and the defendant challenges the

adequacy of a State’s procedural bar, it is first the petitioner’s

burden to prove the procedural bar is inadequate. Bennett v.

Mueller, 322 F.3d 573, 586 (9th Cir. 2003). Only if the peti-

tioner proves the procedural bar is inadequate does the burden

then shift to the State to prove the procedural bar is adequate.

Here, Collier failed in his initial burden of proof. The majority

opinion now relieves petitioners of that burden.

Further, the majority presumes that a statute is not well-

established law unless a court has ruled that the statute means

what it says. This ruling will lead to all sorts of mischief.

Habeas petitioners have a duty to follow the plain language of

a State’s procedural rules, even where no State court has yet

rejected the precise attempt made by the petitioner to circum-

vent those rules. Bargas v. Burns, 179 F.3d 1207, 1211 (9th

Cir. 1999).

Third, even if the amended judgment of conviction did start

anew the time period in which Collier could file an appeal,

which I contend it could not, Collier’s habeas petition was

filed more than one year after the date of entry of the

amended judgment of conviction. Hence, Collier’s habeas

petition was still barred under NRS § 34.726(1). The only

way Collier’s appeal from the amended judgment of convic-

tion could be timely is if his second motion to correct an ille-

gal sentence re-started the time for him to appeal from the

amended judgment. Of course, a motion to correct an illegal

sentence cannot revive the time in which to appeal after that

time has run out; is also not one of the few motions which toll

the time in which to appeal a judgment of conviction in a

criminal case under Nevada Rule of Appellate Procedure 4(b).

COLLIER v. BAYER 6235

I. Procedural History

The precise chronology of events is important in this case.

On May 17, 1995, Collier pleaded guilty to Count I of the

Amended Information, which charged him with violating

NRS §§ 453.3385 and 453.3405 for possession of a traffick-

ing quantity of a controlled substance. Collier and the State

entered into a plea bargain in which Collier agreed to a 45-

year sentence. In exchange, the district attorney dismissed the

other ten charges filed against Collier.2

At the time Collier entered his plea, the maximum sentence

under NRS § 453.3385 for a drug trafficking offense was life

in prison and a $100,000 fine. NEV. REV. STAT. § 453.3385(2)

(1993). Five days before Collier was sentenced, the Nevada

legislature changed the law, and the maximum sentence

became fifteen years. NEV. REV. STAT. § 453.3385(2)(1995).

The new version of NRS § 453.3385(2) specifically stated,

however, that it did not apply to any offense committed

before its effective date of July 1, 1995. Id. The Amended

Information, to which Collier pleaded guilty, stated that Col-

lier committed a violation of NRS § 453.3385 on March 12,

1994, over a year before the effective date of the new statute.

Therefore, the amended statute did not apply to Collier’s case.

Collier was sentenced in accordance with the plea agree-

ment, and a final judgment of conviction was entered against

him on July 5, 1995. The judgment stated that Collier was

guilty of Count I of the Amended Information and the court

sentenced him to 45 years imprisonment and assessed a

$100,000 fine.

2

Collier had been charged with eleven drug trafficking offenses. After

Collier’s arrest, a substantial amount of methamphetamine, ephedrine, and

marijuana was found in Collier’s storage shed, along with 50 weapons and

narcotics paraphernalia. I add these details lest a reader of the majority

opinion come away with the impression that Collier was an unfortunate

bystander who infelicitously fell captive to the wares of a government

plant.

6236 COLLIER v. BAYER

Collier then had 30 days to file an appeal attacking his

judgment of conviction or to extend the 30-day period by fil-

ing one or more specific motions which, under NRAP 4(b),

serve to toll the running of that 30-day period:

In a criminal case, the notice of appeal by a defen-

dant shall be filed in the district court within thirty

(30) days after the entry of the judgment or order

appealed from. . . . If a timely motion in arrest of judg-

ment3 or for a new trial on any ground other than

newly discovered evidence4 has been made, an

appeal from a judgment of conviction may be taken

within thirty (30) days after entry of an order deny-

ing the motion. A motion for a new trial based on the

ground of newly discovered evidence will similarly

extend the time for appeal from a judgment of con-

viction if the motion is made before or within thirty

(30) days after entry of the judgment. . . .

NEV. R. APP. P. 4(b)(1)(1995).

Collier did not file a direct appeal within 30 days after the

entry of the judgment of conviction, nor did he file either a

motion in arrest of judgment or a motion for new trial. There-

fore, the right to appeal his judgment of conviction expired on

August 4, 1995.

Because Collier did not file a timely appeal, he then had

one year after the entry of his judgment of conviction to file

a habeas petition under Nevada law:

3

A motion in arrest of judgment must be filed within 7 days after a

determination of guilt or within such further time as the court may fix dur-

ing the 7-day period. NEV. REV. STAT. § 176.525 (1995).

4

A motion for a new trial that is not based on newly discovered evi-

dence must be filed within 7 days after the verdict or finding of guilt. NEV.

REV. STAT. § 176.515 (1995).

COLLIER v. BAYER 6237

Unless there is good cause shown for delay, a peti-

tion that challenges the validity of a judgment or

sentence must be filed within 1 year after entry of

the judgment of conviction or, if an appeal has been

taken from the judgment, within 1 year after the

Supreme Court issues its remittitur. For the purposes

of this subsection, good cause for delay exists if the

petitioner demonstrates to the satisfaction of the

court:

(a) That the delay is not the fault of the

petitioner; and

(b) That dismissal of the petition as

untimely will unduly prejudice the peti-

tioner.

NEV. REV. STAT. § 34.726(1) (1995). Collier failed to file a

habeas petition by July 5, 1996. His right to file a habeas peti-

tion expired on that date, absent good cause for the delay.

On March 21, 1997, over 8 months after his appeal and

habeas opportunities had expired because of the passage of

time, Collier filed a pro se motion to correct an illegal sen-

tence under NRS § 176.555. In his motion, Collier set forth

the language of Count I to which he had pleaded guilty. He

moved the court to amend the judgment to include the statute

numbers to which he pleaded guilty, NRS §§ 453.3385 and

453.3405.5 As a second ground for his motion, Collier quoted

the revised version of NRS § 453.3385 and moved the court

5

Why this punctiliousness? Perhaps Collier thought that if he got the

court to put in the statute number he could argue the now revised statute

would apply and he was being held illegally. He was conveniently forget-

ting that the revised statute, by its own terms, did not apply to crimes com-

mitted before its effective date of July 1, 1995. Since Collier committed

the offense on March 12, 1994, regardless whether the statute number was

listed in his judgment, the revised statute does not apply to Collier’s case.

But one must remember, Collier was acting pro se.

6238 COLLIER v. BAYER

to limit his sentence to 2 years, down from the 45 years he

agreed to earlier. Collier did not claim that he was ever con-

fused as to the statute under which he was convicted. The stat-

utes were spelled out in the Amended Information and plea

agreement, and Collier himself set them forth in his motion to

correct an illegal sentence.

On March 26, 1997, the Nevada state district court issued

an amended judgment of conviction, in effect granting his

motion that the judgment recite the statute numbers under

which he was convicted. The amended judgment now speci-

fied that Collier had been found guilty of NRS §§ 453.3385

and 453.3405. The court did not, however, grant the second

part of his motion; it refused to reduce Collier’s sentence by

43 years. As the majority correctly noted, “the amended judg-

ment did not change the sentence.” Maj. Op. at 6221. In fact,

the amended judgment of conviction even kept the original

date: “Dated this 5th day of July, 1995.”6 Collier neither

moved for reconsideration of his motion nor did he appeal the

district court’s failure to rule on his motion to limit his sen-

tence to 2 years, or any other aspect of the amended judgment

entered on March 26, 1997. Collier did not file a habeas peti-

tion before March 26, 1998.

On May 20, 1997, Collier filed a second pro se motion to

correct an illegal sentence based on the same grounds as his

first motion to correct an illegal sentence.7

6

This is precisely in keeping with the Nevada Supreme Court’s ruling

in Burbank v. Rivers, 18 P. 753, 755 (Nev. 1888), discussed infra. The

date of the judgment does not change when it is amended to correct a cler-

ical mistake, as was the case here.

7

The majority claims Collier filed this second motion “reviving” his

claims asserted in his March 21, 1997 motion. Maj. Op. at 6221. To repeat

is not to revive. His earlier claim had been denied; it was final. The repeti-

tion of his claim did not “relate back” or otherwise seek a reconsideration

of his earlier motion. It was just a second attempt.

COLLIER v. BAYER 6239

On May 28, 1997, the Nevada state district court denied

Collier’s second motion to correct an illegal sentence. The

district court specifically denied Collier’s motion on the mer-

its because, by its terms, the revised version of NRS

§ 453.3385 did not apply to his case. This time, Collier timely

appealed the district court’s order denying his second motion

to correct an illegal sentence on June 10, 1997.

On November 16, 1998, Collier filed a notice of appeal

from his original judgment of conviction, claiming his appeal

was untimely because his trial counsel did not inform Collier

he had a right to appeal. The Nevada Supreme Court dis-

missed Collier’s appeal as untimely under NRAP 4(b) on Feb-

ruary 3, 1999.8

On May 13, 1999, the Nevada Supreme Court affirmed the

district court’s order denying Collier’s second motion to cor-

rect an illegal sentence. The remittitur was issued on June 11,

1999.

On May 28, 1999, Collier filed a pro se petition for writ of

habeas corpus in the Nevada state district court, seeking to

have all charges against him dismissed. Collier again claimed

his trial counsel failed to inform him that he had a right to file

a direct appeal.

On August 20, 1999, the Nevada state district court dis-

missed Collier’s habeas petition as untimely under NRS

§ 34.726(1). It also held that Collier failed to show good

8

The Nevada Supreme Court had no power to enlarge the time for Col-

lier to file his direct appeal. NEV. R. APP. P. 26(b) (1995); Walker v.

Scully, 657 P.2d 94 (Nev. 1983). Neither could the court have extended

the time for Collier to file either a motion in arrest of judgment or a

motion for new trial to toll the time to file an appeal. NEV. REV. STAT.

§ 178.476 (1995); Culinary & Hotel Serv. Workers Union v. Haugen, 357

P.2d 113 (Nev. 1960) (court did not have power to extend time to file

motion for new trial, even pursuant to a stipulation between the parties,

and thus the notice of appeal was untimely).

6240 COLLIER v. BAYER

cause for the untimeliness of the petition. On September 1,

1999, Collier appealed from the state district court’s denial of

his habeas petition to the Nevada Supreme Court.

While Collier’s appeal from the denial of his state habeas

petition was pending, he filed a habeas petition in federal dis-

trict court through counsel on June 30, 2000.

On August 28, 2001, the Nevada Supreme Court affirmed

the district court’s denial of Collier’s state habeas petition,

holding that his petition was untimely under NRS

§ 34.726(1).

On March 28, 2003, the federal district court denied Col-

lier’s federal habeas petition, holding that the dismissal of

Collier’s state habeas petition under NRS § 34.726(1) pre-

cluded federal habeas review because NRS § 34.726(1) was

an independent and adequate state procedural bar9 and Collier

failed to show good cause for the untimeliness of his state

habeas petition. This timely appeal followed.

II. Standard of Review

We review de novo the district court’s decision to deny a

28 U.S.C. § 2254 habeas petition. Nunes v. Mueller, 350 F.3d

1045, 1051 (9th Cir. 2003). We review findings of fact made

by the district court for clear error, and “may affirm the dis-

trict court’s decision on any ground supported by the record,

even if it differs from the district court’s rationale.” Id.

9

For a state procedural bar to be an independent and adequate ground

sufficient to support a finding of procedural default, the rule must be

“clear, consistently applied, and well-established at the time of petitioner’s

purported default.” Wells v. Maass, 28 F.3d 1005, 1008 (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) (citation omitted).

COLLIER v. BAYER 6241

III. Analysis

A. Under the Plain Language of NRS § 34.726(1) a

Motion to Correct an Illegal Sentence Does Not Re-Start

or Toll the Time in Which to File a Habeas Petition

Regardless whether the original or amended judgment of

conviction is the relevant judgment, Collier’s state habeas

petition, filed on May 28, 1999, was untimely under NRS

§ 34.726(1) because it was filed more than one year after the

original judgment was entered on July 5, 1995, and more than

one year after the amended judgment was entered on March

26, 1997, neither of which did Collier timely appeal.

The Nevada Supreme Court has stated that a motion to cor-

rect an illegal sentence is to be used only when the judgment

contains a sentence that is invalid under the statutory sentenc-

ing scheme, or is based on the district court’s misunderstand-

ing of the defendant’s criminal record. Edwards v. State, 918

P.2d 321, 324-25 (Nev. 1996).

Here, Collier properly filed a motion to correct an illegal

sentence given that his argument was that his judgment of

conviction failed to recite the statute numbers under which he

was convicted and his sentence exceeded the statutory maxi-

mum. I agree that he was able to file such motion at any time.

NEV. REV. STAT. § 176.555 (1995). But this is a very different

proposition from saying that a motion to correct an illegal

sentence also re-starts or tolls the time in which to file a

habeas petition, which must be filed within one year.

First, a motion to correct an illegal sentence and a habeas

petition are entirely different remedies with different pur-

poses. Collier’s motion to correct an illegal sentence did not

raise the question whether he was justly convicted. Collier

had pleaded guilty. The motion raised only the question

whether Collier was correctly sentenced for his crime.

6242 COLLIER v. BAYER

On the other hand, a habeas petition is used to attack the

validity of a judgment of conviction or sentence based on

alleged errors occurring at trial or sentencing. Edwards, 918

P.2d at 324-25. A judgment of conviction encompasses not

only a sentence, but also a finding of guilt. There are impor-

tant reasons why the Nevada legislature has limited the time

in which a judgment of conviction can be attacked collater-

ally. Witnesses die, move away, or forget; evidence is lost.

Witnesses and evidence are irrelevant to a motion to correct

a sentence, particularly where the sentence is negotiated, and

imposed following a guilty plea. That is why timing is impor-

tant to a habeas petition, but irrelevant to a motion to correct

a sentence.

Second, under Nevada law a motion to correct an illegal

sentence does not re-start or toll the time in which to file a

habeas petition. Indeed, in Edwards, the Nevada Supreme

Court specifically disapproved of the very tactic Collier is

attempting to use here:

We have observed that defendants are increasingly

filing in district court documents entitled “motion to

correct illegal sentence” or “motion to modify sen-

tence” to challenge the validity of their convictions

and sentences in violation of the exclusive remedy

provision detailed in NRS 34.724(2)(b), in an

attempt to circumvent the procedural bars governing

post-conviction petitions for habeas relief under

NRS chapter 34. We have also observed that the dis-

trict courts are often addressing the merits of issues

regarding the validity of convictions or sentences

when such issues are presented in motions to modify

or correct allegedly illegal sentences without regard

for the procedural bars the legislature has estab-

lished. If a motion to correct an illegal sentence or

to modify a sentence raises issues outside of the very

narrow scope of the inherent authority recognized in

COLLIER v. BAYER 6243

this Opinion, the motion should be summarily

denied.

Id. at 325 n.2. The majority incorrectly characterizes the hold-

ing of Edwards. It is true that motions to correct an illegal

sentence can be filed at any time. But the filing of a motion

to correct an illegal sentence does not revive, nor toll, the time

in which to file a habeas petition.

Further, in Sullivan v. Nevada, 96 P.3d 761 (Nev. 2004),

the Nevada Supreme Court considered a case that involved an

amended judgment and held:

No specific language in NRS 34.726 expressly pro-

vides that the one-year time period restarts if the

judgment of conviction is amended.

Moreover, construing NRS 34.726 to provide such

an extended time period would result in an absurdity

that the Legislature could not have intended.10 A

judgment of conviction may be amended at any time

to correct a clerical error [under NRS § 176.565] or

to correct an illegal sentence [under NRS § 176.555].

Because the district court may amend the judgment

many years, even decades, after the entry of the orig-

inal judgment of conviction, restarting the one-year

period for all purposes every time an amendment

occurs would frustrate the purpose and spirit of NRS

34.726. Specifically, it would undermine the doc-

trine of finality of judgments by allowing petitioners

to file post-conviction habeas petitions in perpetuity.

Id. 764 (footnotes eliminated).

10

The court in Sullivan was referring to precisely the “absurdity” the

majority embraces today and enacts for all Nevada convictions earlier than

Sullivan, supra.

6244 COLLIER v. BAYER

The majority holds that because no Nevada court before

Sullivan had ruled that the plain language of NRS § 34.726(1)

means what it says, a petitioner could well believe that a

motion to correct an illegal sentence would re-start the time

in which to file a habeas petition; hence, according to the

majority, the one-year time period of NRS § 34.726(1) was

not “well-established” until Sullivan. While this argument

might have some merit if the language of NRS § 34.726(1)

were ambiguous and might allow one to interpret it in the

manner Collier does, the language of the statute is not ambig-

uous. See supra p. 6221. In ruling that the very argument pro-

posed by Collier “would result in an absurdity that the

Legislature could not have intended,” the court in Sullivan

was interpreting what the legislature intended when NRS

§ 34.726(1) was enacted. The meaning derived is not new; it

has always been there. See, e.g., Bousley v. United States, 523

U.S. 614, 633 (1998) (“It is well established that ‘when this

Court construes a statute, it is explaining its understanding of

what the statute has meant continuously since the date when

it became law.’) (quoting Rivers v. Roadway Express, Inc.,

511 U.S. 298, 313, n. 12 (1994)); Schwenk v. Hartford, 204

F.3d 1187, 1204 (9th Cir. 2000) (“It is well-established that

acts of Congress enjoy a strong presumption of constitutional-

ity and that newly-passed statutes do not require judicial rati-

fication in order to take effect.”).

B. Collier Has the Burden to Prove NRS § 34.726(1) Is

Not Adequate

The majority holds that: “Once a petitioner has demon-

strated the inadequacy of a rule, the state bears the ultimate

burden of proving the rule bars federal review.” Majority Op.

at 6224-25. Although the majority properly cites the standard,

it mis-applies the burden of proof because Collier never has

established the inadequacy of NRS § 34.726(1). See Majority

Op. at 6225, n. 6.

COLLIER v. BAYER 6245

For ease of reference, I reiterate the Ninth Circuit’s stan-

dard regarding the burden of proving the adequacy of a state

rule:

Once the state has adequately pled the existence of

an independent and adequate state procedural ground

as an affirmative defense, the burden to place that

defense in issue shifts to the petitioner. The peti-

tioner may satisfy this burden by asserting specific

factual allegations that demonstrate the inadequacy

of the state procedure, including citation to authority

demonstrating inconsistent application of the rule.

Once having done so, however, the ultimate burden

is the state’s.

Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003)

(emphasis added).

Thus, Step One is the state pleads a procedural bar. The

burden is then shifted to the petitioner. Step Two is where the

petitioner must demonstrate the inadequacy of the state proce-

dural bar, including “citation to authority demonstrating

inconsistent application of the rule.”

The majority completely skips over Step Two, the step

requiring a petitioner who claims a state procedural bar (here

clearly stated in NRS § 34.726(1)) is not adequate, to prove

the inadequacy of the bar. Collier has not alleged any specific

factual allegations or cited us to any cases, nor can we find

any, where the Nevada Supreme Court failed to apply NRS

§ 34.726(1), so that one could conclude NRS § 34.726(1) was

not “well-established.” Nor has he cited any cases where the

Nevada Supreme Court allowed a motion to correct an illegal

sentence to re-start either the time to file an appeal or the time

to file a habeas petition. Thus, the state carried its burden

under Step One by pleading NRS § 34.726(1) as a procedural

bar. Collier has failed to carry his burden under Step Two.

6246 COLLIER v. BAYER

Indeed, we have previously held that NRS § 34.726(1) is an

independent and adequate state procedural rule barring federal

habeas review. See Loveland v. Hatcher, 231 F.3d 640, 643

(9th Cir. 2000); Moran v. McDaniel, 80 F.3d 1261, 1269 (9th

Cir. 1996). The majority’s conclusion is directly at odds with

Loveland and Moran. The majority concludes that because a

case presenting Collier’s precise factual situation had not been

previously decided by the Nevada Supreme Court, the law

must not be well-established. But this cannot be the rule. The

precise factual situations involved in Loveland and Moran had

not been decided prior to those cases either. Nevertheless, we

held that NRS § 34.726(1) barred federal review of those

cases.

The only difference between Moran, Loveland and this

case is that Collier filed two motions to correct an illegal sen-

tence rather than the one motion filed in those cases. This dif-

ference makes no more distinction than the fact that Collier is

not named Loveland or Moran.

This court has already soundly rejected the argument that

for a procedural bar to be “well-established” a state court

must have ruled that a particular attempt to circumvent that

procedural bar is invalid. In Bargas v. Burns, 179 F.3d 1207,

1211 (9th Cir. 1999), the petitioner made a similar attempt to

circumvent Nevada’s procedural bars. Bargas pleaded guilty

to sexual assault in Nevada state court. He then filed a state

habeas petition, claiming that he had ineffective assistance of

counsel and that his plea was not knowing and voluntary. Id.

at 1209-10. This petition was denied, but the trial court failed

to rule specifically on his claim of ineffective assistance of

counsel. Bargas appealed to the Nevada Supreme Court, but

only on the ground that his plea was not knowing and volun-

tary. He failed to raise his claim of ineffective assistance of

counsel. The Nevada Supreme Court affirmed the denial of

his habeas petition. Id. at 1210.

Bargas then filed a habeas petition in federal court alleging

ineffective assistance of counsel. The district court dismissed

COLLIER v. BAYER 6247

his petition, holding that his claim of ineffective assistance of

counsel was unexhausted because he failed to assert this claim

before Nevada’s highest court. Id. at 1210.

Bargas then filed a second habeas petition in state court,

attempting to “revive,” as Collier did in his second motion to

correct an illegal sentence, his claim that he had ineffective

assistance of counsel and that his plea was not knowing and

voluntary. Id. The trial court held that Bargas had procedur-

ally defaulted on his ineffective assistance of counsel claim

by not appealing the failure to rule on that issue in his first

habeas petition. Id.

Bargas then filed a second habeas petition in federal court,

again claiming he had ineffective assistance of counsel and

that his plea was not knowing and voluntary. The district

court denied the petition on the claim that Bargas’ plea was

not knowing and voluntary, but refused to reach the issue of

ineffective assistance of counsel because that claim was

barred by an independent and adequate state procedural bar—

NRS § 34.726(1). Id. On appeal, we affirmed the district

court’s ruling that it had no jurisdiction to hear petitioner’s

federal habeas petition on the issue of ineffective assistance

of counsel because Nevada’s law that a habeas petitioner had

to raise all his claims in his first petition was “well estab-

lished,” even though no Nevada case had yet held that a sec-

ond habeas petition did not “revive” such claims:

[Bargas] argues that there are not any reported cases

in Nevada specifically holding that a petitioner pro-

cedurally defaults a claim when he fails to appeal

from the denial of post-conviction relief, and instead

files a second petition for habeas corpus. Although

we agree with that conclusion, Nevada law neverthe-

less clearly requires a petitioner to raise all claims in

his first petition, unless he can demonstrate cause

and prejudice . . .

6248 COLLIER v. BAYER

Id. at 1211. The same is true here. Simply because no Nevada

court had previously stated that a second motion to correct an

illegal sentence does not re-start or toll the time in which to

file a habeas petition, any more than a first such motion, does

not mean the law was not well-established. NRS § 34.726(1)

and NRAP 4(b) are both quite clear about what alone will toll

the time to file an appeal and a habeas petition. All Collier

had to do was read the relevant statutes. Although Sullivan

was not decided at the time Collier was convicted, NRS

§ 34.726(1) was well-established. NRS § 34.726(1) was

passed in 1991, well before Collier was convicted in 1995.

The plain language of NRS § 34.726(1) shows that motions

to correct an illegal sentence do not re-start or toll the time in

which to file a habeas petition. See supra, p. 6221. NRS

§ 34.726(1) states that only an appeal tolls the time in which

to file a habeas petition. The majority opinion is reading pos-

sibilities into NRS § 34.726(1) that the plain language of that

statute precludes. There are no cases where the Nevada

Supreme Court allowed such a second, identical and denied

motion to correct an illegal sentence to re-start or toll the time

in which to file either an appeal under NRAP 4(b)(1) or a

habeas petition under NRS § 34.726(1). Further, although the

majority states that “Collier filed a second motion to correct

an illegal sentence reviving the challenge to his sentence . . .”

(Majority Op. at 6221), this second motion was not a timely-

filed motion to reconsider the denial of his first motion. Thus,

it could not “revive” his first motion. Accordingly, we are

bound by Loveland and Moran.

C. A Motion to Correct an Illegal Sentence Does Not Re-

Start or Toll the Time in Which to File an Appeal

Because the plain language of NRS § 34.726(1) states that

an appeal will toll the time in which to file a habeas petition,

we must examine whether Collier’s direct appeal from his

judgment of conviction was a valid appeal under Nevada law.

It was not.

COLLIER v. BAYER 6249

Under either the original judgment of conviction, entered

on July 5, 1995, or the amended judgment of conviction,

entered on March 26, 1997, Collier’s appeal from his judg-

ment of conviction, filed on November 16, 1998, was

untimely and was therefore of no effect. NEV. R. APP. P. 4(b).

This rule was well-established at the time of Collier’s convic-

tion even under the majority’s holding that there must be a

case saying so. See Lozada v. State, 871 P.2d 944, 946 (Nev.

1994).

Moreover, the amended judgment of conviction did not re-

start the time period for Collier to file a direct appeal attack-

ing his judgment of conviction under NRAP 4. The Nevada

Supreme Court addressed a similar situation in Morrell v.

Edwards, 640 P.2d 1322 (Nev. 1982). There, the Nevada

Supreme Court dismissed a civil appeal as untimely where the

notice of appeal was not filed within thirty days of the origi-

nal judgment, but was filed within thirty days of the amended

judgment. The judgment had been amended to strike an award

of costs. The court held that: “The test for determining

whether an appeal is properly taken from an amended judg-

ment rather than the judgment originally entered depends on

whether the amendment disturbed or revised legal rights and

obligations which the prior judgment had plainly and properly

settled with finality.” 640 P.2d at 1324. Here, the amended

judgment of conviction did not revise the legal rights of the

parties. The majority opinion dismisses Edwards because it

was a civil case, but there is no reason the same principles

would not apply to a criminal case.

Further, the majority opinion dismisses a similar holding in

a criminal case Burbank v. Rivers, 18 P. 753, 755 (Nev.

1888), as dusty old law. Majority Op. at 6226-27, n.7. What

the majority opinion refuses to acknowledge is that Burbank

is still good law. In Burbank, the Nevada Supreme Court held

that when a technical change is made to a judgment of convic-

tion, the time within which an appeal may be taken from the

judgment of conviction is computed from the date of the entry

6250 COLLIER v. BAYER

of the original judgment not the amended judgment, unless

the party filing the appeal can show that he was “deceived”

or “misled” by the original judgment as entered. Burbank v.

Rivers, 18 P. 753, 755 (Nev. 1888) (holding that a judgment

that was amended to state the defendant’s correct name did

not start the time to file an appeal anew). Remember, the only

change in the amended judgment (March 26, 1997) was to

add the section number under which Collier was convicted. If

that is not merely “clerical” or “technical,” the words have

lost their meaning. Here, there is no argument Collier was

ever deceived or misled by the original judgment. By dismiss-

ing Burbank as too old, even though it has been followed and

cited,11 but never overruled, the majority establishes the

bizarre rule that a statute is only well-established if a case has

upheld the statute, but only if that case is not too old. Of

course, the majority does not tell us at what point a case

becomes overruled by operation of time.

The only way that Collier’s appeal could be considered

timely is if his second motion to correct an illegal sentence,

which was filed on May 20, 1997, first revived and then tolled

the time in which to file an appeal from his judgment of con-

viction. But that cannot be the case—under NRAP 4(b), only

timely motions in arrest of judgment or for a new trial toll the

time in which to file an appeal. See supra p. 6236.

Further, the majority states that “there is no established rule

that motions to correct an illegal sentence do not qualify as an

appeal from judgment, thus tolling the period for filing a

habeas petition.” Majority Op. at 6223. This is incorrect for

two reasons. First, as discussed above, a motion to correct an

illegal sentence presupposes that guilt was proved or admit-

ted. An appeal from judgment posits innocence. Second, even

if a motion to correct an illegal sentence were to qualify as an

appeal, Collier failed to file his motion to correct an illegal

11

See Bottini v. Mongolo, 197 P. 702, 704, 45 Nev. 245, 245 (Nev.

1921).

COLLIER v. BAYER 6251

sentence within the 30-day time limit under NRAP 4(b) and

therefore, as an appeal, the motion was of no effect. Lozada,

871 P.2d at 946. “In the case of an untimely appeal, no

‘appeal had been taken from the judgment’ within the mean-

ing of NRS § 34.726(1) because nothing has happened.”

Dickerson v. State, 967 P.2d 1132, 1134 (Nev. 1998) (defen-

dant who was convicted of second degree murder filed an

untimely appeal, and then filed a petition for writ of habeas

corpus within one year of the issuance of the remittitur on his

appeal, but not within one year of his judgment of conviction;

the Nevada trial court dismissed the habeas petition as

untimely under NRS § 34.726(1); the Nevada Supreme Court

affirmed, holding that under the language of NRS § 34.726(1)

only a timely appeal tolls the one-year period in which to file

a habeas petition).

The court in Dickerson held:

We now construe NRS 34.726(1) to mean that the

one-year period for filing a post-conviction habeas

corpus petition begins to run from the issuance of the

remittitur from a timely direct appeal to this court

from the judgment of conviction if no direct appeal

is taken. A timely direct appeal is one in which the

notice of appeal is filed with the district court within

the time period prescribed by statute. See, e.g.,

NRAP 4. . . . In the case of an untimely appeal, no

“appeal had been taken from the judgment” within

the meaning of NRS 34.726(1) because nothing has

happened.

Moreover, to construe the statute any other way

would lead to absurd results. . . . If the appeal

referred to in NRS 34.726(1) meant any appeal,

whether this court obtained jurisdiction or not, peti-

tioners would be able to file successive notices of

appeal year after year and thus perpetually re-start

the one-year limitation period. Clearly, this is not

6252 COLLIER v. BAYER

what the legislature envisioned. Indeed, this court

has already noted that the statutory time periods are

intended to prevent such results. “Without such limi-

tations on the availability of post-conviction reme-

dies, prisoners could petition for relief in perpetuity

and thus abuse post-conviction remedies.” Lozada

[v. State, 871 P.2d 944, 950 (Nev. 1994)].

Dickerson, 967 P.2d at 1133-34.

Although it is true that Dickerson was the first Nevada case

to hold that only a timely direct appeal tolls the time in which

to file a habeas petition under NRS§ 34.726(1), Dickerson

was simply relying on the plain language of NRS § 34.726(1)

and NRAP 4(b), and interpreting the intent of the legislature

when it enacted NRAP 4(b). By concluding that Nevada law

was not well-established prior to Collier’s appeal, the major-

ity opinion overlooks the plain language of NRS § 34.726(1)

and NRAP 4(b)(1). It would be a supremely arrogant view of

judicial importance to say that only judges can make law.

Law does not have to be in the form of a judge’s decision to

be binding. Statutes and rules are also binding.

Here, under the majority’s analysis, a Nevada prisoner can

completely defeat both NRS § 34.726(1) and NRAP 4(b), and

repeatedly re-start the time in which to file a state habeas peti-

tion, simply by filing a motion to correct an illegal sentence

and then appealing the denial of that motion—even if the

grounds alleged in the motion to correct an illegal sentence

could have been brought up in a timely direct appeal from the

judgment of conviction, or an appeal from an identical earlier

motion, as is the case here.

There is no need for such a rule. Under Nevada law, peti-

tioners who can show good cause for the delay can avoid the

one-year limitation under NRS § 34.726(1). Dickerson, 967

P.2d 1132, 1134.

COLLIER v. BAYER 6253

To establish good cause to excuse a procedural default

under Nevada law, “a defendant must demonstrate that some

impediment external to the defense prevented him from com-

plying with the procedural rule that has been violated.”

Lozada, 871 P.2d at 946. Here, Collier has not shown good

cause because, under Nevada law, the failure of counsel to

advise a criminal defendant that he has the right to file a direct

appeal is not good cause for failing to file a habeas petition

within one year after judgment of conviction. Dickerson, 967

P.2d at 1134.12

Prior to and at the time of Collier’s conviction in 1995, it

was well-established law that only the motions specified in

NRAP 4 would toll the time in which to file a notice of

appeal. See, e.g., Chapman Indus. v. United Ins. Co., 874 P.2d

739, 741 (Nev. 1994) (per curiam) (a motion for reconsidera-

tion is not a tolling motion under NRAP 4(a) and therefore

does not re-start or toll the time in which to file a notice of

appeal); Holiday Inn Downtown v. Barnett, 732 P.2d 1376,

1379 (Nev. 1987) (per curiam) (a motion to vacate an order

affirming an administrative decision is not a tolling motion

under NRAP 4(a) and therefore does not re-start or toll the

time in which to file a notice of appeal). This was all well-

established law at the time of Collier’s conviction.

IV. Conclusion

The majority opinion allows a petitioner to resurrect an

expired right to file a habeas petition attacking a judgment of

conviction simply by filing a motion to correct an illegal sen-

tence. This is contrary to Nevada law and to this court’s hold-

ings in Loveland and Moran.

Although the majority acknowledges that we have no

power to second guess state court interpretations of state law,

12

Like Collier, Dickerson argued that his direct appeal was late because

his counsel failed to tell him he had a right to appeal. 967 P.2d at 1133.

6254 COLLIER v. BAYER

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), that is exactly

what the majority does. It second guesses NRS § 34.726(1)

and NRAP 4(b), not to mention our own burden of proof rule

stated in Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir.

2003).

If Collier’s original July 5, 1995 judgment of conviction is

considered, Collier’s November 16, 1998 notice of appeal was

filed well after the thirty-day deadline in NRAP 4(b), and his

May 28, 1999 habeas petition was filed well after the one-

year deadline in NRS § 34.726(1).

If the March 26, 1997 amended judgment of conviction is

considered (which it should not be), Collier’s November 16,

1998 notice of appeal was filed after the thirty-day deadline

in NRAP 4(b), and his May 28, 1999 habeas petition was still

filed after the one-year deadline in NRS § 34.726(1).

The one-year deadline in NRS § 34.726(1) was at all times

well-established law, and any way you look at this case, Col-

lier missed that deadline. Accordingly, I respectfully dissent.