Gonzalas v. Williams ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 LUIS GONZALAS, Case No. 2:17-cv-01653-RFB-GWF 10 Petitioner, ORDER v. 11 BRIAN WILLIMAS, et al., 12 Respondents. 13 14 15 Luis Gonzalas’ 28 U.S.C. § 2254 Habeas Corpus Petition is before the Court on 16 Respondents’ Motion to Dismiss one ground as unexhausted (ECF No. 20). Gonzalas 17 opposed and Respondents replied (ECF Nos. 30, 33). 18 I. Procedural History and Background 19 20 In December 2007, a jury convicted Gonzalas of first-degree murder with use of a 21 deadly weapon. Ex. 35, ECF No. 25.1 The state district court sentenced him to life in 22 prison with the possibility of parole, with an equal and consecutive term for the deadly 23 weapon. Ex. 44, ECF No. 25. 24 The Supreme Court of Nevada affirmed Gonzalas’ conviction and affirmed the denial 25 of his state postconviction habeas petition. Ex. 81, ECF No. 27; Ex. 153, ECF No. 29. 26 27 1 Gonzalas dispatched his federal habeas petition for filing about May 25, 2017. ECF 2 No. 8. This Court granted his Motion for Appointment of Counsel, and Gonzalas filed an 3 Amended Petition through counsel. ECF No. 18. Respondents now move to dismiss 4 ground A(3) as unexhausted. ECF No. 20 at 6-7. 5 I. Legal Standards & Analysis 6 a. Exhaustion 7 Respondents point out that Petitioner has acknowledged that ground A(3) is 8 unexhausted. Id. at 7. 9 State prisoners seeking federal habeas relief must comply with the exhaustion rule 10 codified in 28 U.S.C. § 2254(b)(1): 11 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it 12 appears that – 13 (A) The applicant has exhausted the remedies available in the courts of the 14 State; or 15 (B) (i) there is an absence of available State corrective process; or 16 (ii) circumstances exist that render such process ineffective to protect the 17 rights of the applicant. 18 The purpose of the exhaustion rule is to give the state courts a full and fair opportunity 19 to resolve federal constitutional claims before those claims are presented to the federal 20 court, and to “protect the state courts’ role in the enforcement of federal law.” Rose v. 21 Lundy, 455 U.S. 509, 518 (1982); O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see 22 also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 23 petitioner has given the highest available state court the opportunity to consider the claim 24 through direct appeal or state collateral review proceedings. See Casey v. Moore, 386 25 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 26 A habeas petitioner must “present the state courts with the same claim he urges upon 27 the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971) (citations omitted). The federal constitutional implications of a claim, not just issues of state law, must have been 1 raised in the state court to achieve exhaustion. See id. at 276-78. To achieve exhaustion, 2 the state court must be “alerted to the fact that the prisoner[] [is] asserting claims under 3 the United States Constitution” and given the opportunity to correct alleged violations of 4 the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365-66 (1995); see also 5 Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 6 2254(b) “provides a simple and clear instruction to potential litigants: before you bring any 7 claims to federal court, be sure that you first have taken each one to state court.” Lundy, 8 455 U.S. at 520. “[G]eneral appeals to broad constitutional principles, such as due 9 process, equal protection, and the right to a fair trial, are insufficient to establish 10 exhaustion.” Hiivala, 195 F.3d at 1106 (citation omitted). However, citation to state 11 caselaw that applies federal constitutional principles will suffice. Peterson v. Lampert, 12 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). 13 A claim is not exhausted unless the petitioner has presented to the state court the 14 same operative facts and legal theory upon which his federal habeas claim is based. 15 Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994), overruled 16 on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000). The exhaustion 17 requirement is not met when the petitioner presents to the federal court facts or evidence 18 which place the claim in a significantly different posture than it was in the state courts, 19 Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988), or where different facts are 20 presented at the federal level to support the same theory, Pappageorge v. Sumner, 688 21 F.2d 1294, 1295 (9th Cir. 1982) (Ely, J., concurring). 22 b. Procedural Default and Ineffective Assistance of Trial Counsel Claims 23 In ground A(3) Gonzalas argues that his trial counsel rendered ineffective assistance 24 when they failed to object to the State’s use of his former gang membership as bad 25 character evidence, in violation of his right to free association. ECF No. 18 at 15-17. 26 Gonzalas concedes that this ground is unexhausted. ECF No. 30 at 4-6. He urges this 27 Court to treat the claim as technically exhausted/procedurally defaulted. “Procedural default” refers to the situation in which a petitioner in fact presented a claim to the state 1 courts but the state courts disposed of the claim on procedural grounds, instead of on the 2 merits. A federal court will not review a claim for habeas corpus relief if the decision of 3 the state court regarding that claim rested on a state law ground that is independent of 4 the federal question and adequate to support the judgment. Coleman v. Thompson, 501 5 U.S. 722, 730-31 (1991). 6 The Coleman Court explained the effect of a procedural default: 7 In all cases in which a state prisoner has defaulted his federal claims in state 8 court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can 9 demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the 10 claims will result in a fundamental miscarriage of justice. 11 501 U.S. at 750. 12 Gonzalas describes a claim as “technically exhausted” if the state courts would no 13 longer review it on the merits. Gonzalas acknowledges that that would be the case if he 14 tried to submit a new petition with these claims to the state courts. ECF No. 30 at 4-6. 15 First, the state courts would find Gonzalas’ petition time-barred, because he would be 16 filing it outside the one-year statute of limitations. Id. at 4-5 (citing NRS 34.726). Second, 17 the state courts would find the petition successive, because he has already filed a 18 previous petition. Id. (citing NRS 34.810). Gonzalas agrees that the state courts would 19 almost certainly apply those procedural bars and argues that therefore he does not have 20 an available remedy in state court. Id. at 6. However, he asserts that he can demonstrate 21 cause and prejudice to excuse the procedural default. Id. at 6-13. 22 To demonstrate cause for a procedural default, the petitioner must be able to “show 23 that some objective factor external to the defense impeded” his efforts to comply with the 24 state procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986) (emphasis added). 25 For cause to exist, the external impediment must have prevented the petitioner from 26 raising the claim. Id. at 492. 27 In federal habeas cases arising out of Nevada, the state courts generally apply 1 can demonstrate either cause or actual innocence in order to overcome a claimed 2 procedural default. Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2004). Thus, 3 if a petitioner has a potentially viable cause-and-prejudice or actual-innocence argument 4 under the substantially similar federal and state standards, then she cannot establish that 5 “‘it is clear that the state court would hold the claim procedurally barred.’” Sandgathe v. 6 Maass, 314 F.3d 371, 376 (9th Cir. 2002) (quoting Franklin v. Johnson, 290 F.3d 1223, 7 1230-31 (9th Cir. 2002)). On the other hand, if the petitioner has no such potentially viable 8 arguments, then the claim indeed is technically exhausted; but it also is subject to 9 immediate dismissal with prejudice as procedurally defaulted. 10 Ineffective assistance of counsel claims present a different situation in this context. 11 Gonzalas argues that he can show cause and prejudice and that the default of ground 12 A(3) should be excused under Martinez v. Ryan, 566 U.S. 1 (2012), because he received 13 ineffective assistance of state postconviction counsel. ECF No. 30 at 6-13. 14 The Court in Coleman held that ineffective assistance of counsel in postconviction 15 proceedings does not establish cause for the procedural default of a claim. Coleman, 501 16 U.S. at 752-54. In Martinez, the Court established a “narrow exception” to that rule. 566 17 U.S. at 9. The Court explained that: 18 Where, under state law, claims of ineffective assistance of trial counsel must 19 be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective 20 assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. 21 Id. at 17. 22 The Ninth Circuit has provided guidelines for applying Martinez, summarizing the 23 analysis as follows: 24 25 To demonstrate cause and prejudice sufficient to excuse the procedural default, therefore, Martinez . . . require[s] that [Petitioner] make two 26 showings. First, to establish “cause,” he must establish that his counsel in the state postconviction proceeding was ineffective under the standards of 27 Strickland [v. Washington, 466 U.S. 668 (1984)]. Strickland, in turn, requires him to establish that both (a) post-conviction counsel's performance was deficient, and (b) there was a reasonable probability that, absent the 1 have been different. Second, to establish “prejudice,” he must establish that his “underlying ineffective-assistance-of-trial-counsel claim is a substantial 2 one, which is to say that the prisoner must demonstrate that the claim has some merit.” 4 Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014) (citations omitted). 5 Here, the Martinez analysis with respect to ground A(3) appears intertwined, to a 6 large extent, with the analysis of the merit of the underlying ineffective assistance claim 7 at trial. The parties have briefed whether Gonzalas’ postconviction counsel was 8 ineffective under Strickland _v. Washington and whether the underlying ineffective 9 assistance claim is substantial. In the interests of judicial efficiency, the Court will defer 40 ruling on the Martinez issue to the merits disposition of Gonzalas’ Petition. Therefore, the 44 Court denies the Motion to Dismiss at this point but defers a determination as to whether 42 Gonzalas has demonstrated cause and prejudice to excuse the procedural default of 43 ground A(3). 44 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 20) is 45 DENIED as set forth in this Order. 16 IT IS FURTHER ORDERED that Respondents’ Motion for Extension of Time to File a 47 Response to the Amended Petition (ECF No. 19) is GRANTED nunc pro tunc. 48 IT IS FURTHER ORDERED that Respondents shall have sixty (60) days from the 49 date this Order is entered within which to file an Answer to the Amended Petition. 20 IT IS FURTHER ORDERED that Petitioner shall have forty-five (45) days following service of Respondents’ Answer in which to file a Reply. 22 DATED: 13 December 2019. 23 24 RICHARD AS ARE, I 25 UNITED STATES DISTRICT JUDGE 26 27 28