Perry v. Warden Gabriela Najera ( 2024 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 GENARO RICHARD PERRY, Case No.: 2:23-cv-00311-GMN-EJY 9 Petitioner Order Granting Motion to Dismiss 10 v. (ECF No. 25) 11 WARDEN GABRIELA NAJERA, et al., 12 Respondents. 13 Pro se 28 U.S.C. § 2254 Habeas Corpus Petitioner Genaro Richard Perry 14 challenges his conviction of several counts involving robbery and assault. (ECF No. 15.) 15 He mainly argues that his trial counsel was ineffective in numerous ways. (Id.) 16 Respondents move to dismiss three grounds in the Petition as noncognizable on federal 17 habeas review and one ground as moot. (ECF No. 25.) Because claims of ineffective 18 assistance of state postconviction counsel are noncognizable on federal habeas review 19 and because ground 23 has been rendered moot, the Court grants the Motion. 20 I. Background 21 In October 2015, Perry was convicted, pursuant to a bench trial, in Eighth 22 Judicial District Court, Las Vegas, Nevada (Clark County), as follows: Count 1 - 23 Robbery with Use of a Deadly Weapon; Count 2 – False Imprisonment; Count 3 – 1 Grand Larceny Auto; Count 4 – Assault with a Deadly Weapon; Count 5 – Coercion; 2 Count 6 – Battery Causing Substantial Harm Constituting Domestic Violence; and Count 3 7 – Preventing or Dissuading Witness or Victim from Reporting Crime or Commencing 4 Prosecution. (Exh. 64.)1 The case arose from an incident where Perry severely beat his 5 ex-girlfriend, then held her at knifepoint for almost an hour while planning to kill her. He 6 eventually took her car and left. (See Exh. 61 at 9-10.) The state district court 7 sentenced Perry to what amounted to an aggregate sentence of 8 to 28 years. (Exh. 8 76.) Judgment of conviction was entered on January 22, 2016. (Exh. 78.)2 The Nevada 9 Court of Appeals affirmed his conviction, affirmed the denial of his state postconviction 10 habeas corpus petition, and affirmed the denial of his motion to correct/modify illegal 11 sentence. (Exhs. 99, 176, 212.) 12 Perry dispatched his Federal Habeas Corpus Petition for mailing in February 13 2023. (ECF No. 15.) He raises 19 claims of ineffective assistance of trial counsel, three 14 claims that his state postconviction appellate counsel was ineffective, and he argues 15 that the trial court erred by modifying his sentence. (ECF No. 15.) Respondents now 16 move to dismiss the following claims: 17 Ground 20: State postconviction counsel was ineffective for failing to file a certificate of service with the petition to the district court to 18 do fingerprint testing or DNA analysis. 19 Ground 21: State postconviction counsel failed to cite to Nevada 20 law to support petition for fingerprint analysis. 21 22 1 Exhibits referenced in this order are exhibits to Respondents’ Motion to Dismiss, ECF No. 25, and are found at ECF Nos. 21-24. 23 2 In an amended judgment of conviction filed August 8, 2017, the court struck the language aggregating the sentences. Exh. 113. 1 Ground 22: State postconviction counsel failed to cite to Nevada law in the appeal of the petition for DNA and fingerprint analysis. 2 3 Ground 23: The state court erred by modifying his sentence. 4 (ECF Nos. 25,15 at 21-27.)3 5 6 II. Legal Standards & Analysis 7 a. Motion to Dismiss Claims of ineffective assistance of postconviction counsel are 8 noncognizable 9 Respondents move to dismiss grounds 20-22 because they are noncognizable 10 claims of ineffective assistance of postconviction counsel. (ECF No. 25 at 9.) There is 11 no right to counsel in state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 12 551, 555 (1987). Claims of error during state postconviction proceedings are not 13 cognizable on federal habeas review. Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 14 1989) (per curiam). The Court therefore dismisses grounds 20, 21, and 22 because 15 they are not cognizable on federal habeas review. 16 Ground 23 is dismissed as moot 17 Respondents also move to dismiss ground 23. Perry claims that the state district 18 court erred when it entered the Amended Judgment of Conviction striking the aggregate 19 sentence language. (ECF No. 15 at 24-37.) NRS 176.035(1) provides that the 20 sentencing court pronounce an aggregate term for judgments of conviction for crimes 21 committed after July 1, 2014. Because Perry committed his crimes in May 2014, the 22 23 3 Perry was granted an extension of time to respond to the motion, but ultimately never responded. (See ECF Nos. 31, 36.) 1 aggregate language was extraneous. Therefore, the court entered an Amended 2 Judgment of Conviction correcting the clerical error by striking the extraneous language. 3 (Exh. 113.) In any event, NRS 213.1212(5)4 permits a prisoner in Perry’s situation to 4 choose to have his sentences aggregated, which Perry did. He has also been released 5 on parole.5 The Court therefore dismisses ground 23 as moot. 6 b. Motion to Seal 7 Finally, Respondents have filed a Motion for Leave to File an Exhibit Under Seal. 8 (ECF No. 26.) While there is a presumption favoring public access to judicial filings and 9 documents, see Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978), a 10 party seeking to seal a judicial record may overcome the presumption by demonstrating 11 “compelling reasons” that outweigh the public policies favoring disclosure, Kamakana v. 12 City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (citations omitted). 13 In general, “compelling reasons” exist where the records may be used for improper 14 purposes. Id. at 1179 (citing Nixon, 435 U.S. at 598). Here, Respondents ask to file 15 Perry’s Presentence Investigation Report (“PSI”) under seal because it is confidential 16 under state law and contains sensitive information. (ECF No. 26.) The Court has 17 reviewed the PSI and concludes that Respondents have demonstrated compelling 18 reasons to file the PSI under seal. Accordingly, the motion is granted, and the PSI will 19 remain under seal. 20 21 4 …[A] prisoner who is serving consecutive sentences which have not been aggregated may, by submitting a written request to the Director of the Department of Corrections, make an 22 irrevocable election to have the sentences aggregated.” 23 5 The Court takes judicial notice of the inmate information on the Nevada Department of Corrections website, https://ofdsearch.doc.nv.gov/form.php, which reflects that Perry has been paroled. Hil. Conclusion 2 3 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 4 25) is GRANTED. 5 e Grounds 20, 21, and 22 are DISMISSED as noncognizable on federal 6 habeas review; 7 e Ground 23 is DISMISSED as moot. 8 IT |S FURTHER ORDERED that Respondents’ Motion for Leave to File Exhibit 9 under Seal (ECF No. 26) is GRANTED. The exhibit will remain under seal. 10 IT IS FURTHER ORDERED that Respondents have 60 days from the date of this 1] order to file an answer to the remaining grounds in the Petition. The answer must 12 contain all substantive and procedural arguments for all surviving grounds of the petition 13 and comply with Rule 5 of the Rules Governing Proceedings in the United States 14 District Courts under 28 U.S.C. § 2254. 15 IT IS FURTHER ORDERED that Petitioner will then have 45 days from the date 16 of service of Respondents’ answer to file a reply. 17 18 19 DATED: 31 July 2024. 20 G IA M. NAVARRO 71 ED STATES DISTRICT JUDGE 22 23