MANUEL SAUCEDO LOPEZ V. E.K. MCDANIEL ET AL (DEATH PENALTY)

Filing 182

ORDER that respondents' motion to dismiss ECF No. 139 is GRANTED in part and DENIED in part; respondent to file answer to the remaining claim in ECF No. 126 Second Amended Petition for Writ of Habeas Corpus by 11/26/2018; i n all other respects, the scheduling of this matter is governed by the scheduling order ECF No. 124 ; petitioner's motion for an evidentiary hearing ECF No. 166 is DENIED; respondents' motion for extension of time ECF No. 177 is GRANTED nunc pro tunc as of 06/19/2018. Signed by Judge Robert C. Jones on 9/27/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MANUEL SAUCEDO LOPEZ,

Case No. 2:01-cv-00406-RCJ-NJK
Petitioner,

ORDER

v.

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TIMOTHY FILSON, et al.,
Respondents.

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This is an action for habeas relief under 28 U.S.C. § 2254 brought by Manuel

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Saucedo Lopez, a Nevada prisoner sentenced to death. Respondents have filed a

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motion to dismiss Lopez’s second amended petition for writ of habeas corpus. ECF No.

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139. As the bases for their motion, respondents contend that the petition is time-barred

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28 U.S.C. § 2244(d) or, alternatively, that numerous claims in the petition are time-

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barred and/or barred by the doctrine of procedural default. Respondents also argue that

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some of Lopez’s claims are not cognizable in an action brought under § 2254 and that

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one is not ripe for habeas review.

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Lopez has filed an opposition to the motion (ECF No. 172) and a motion for an
evidentiary hearing (ECF No. 166).
Having considered the parties’ arguments and relevant portions of the record, the
court decides as follows.

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I. PROCEDURAL BACKGROUND

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On January 22,1985, Lopez was charged with murder, by way of indictment, in

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relation to the death of his four-year old stepdaughter. After a jury trial, the Eighth

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Judicial District Court for Nevada entered, on April 30, 1985, a judgment of conviction

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finding Lopez guilty of first-degree murder and sentencing him to death. On February

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27, 1989, the Nevada Supreme Court affirmed Lopez’s conviction and sentence.

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Between August 1989 and December 1994, Lopez unsuccessfully pursued post-

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conviction relief in the Nevada courts. On June 23, 1995, he filed his first federal habeas

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petition, which was assigned case number CV-S-95-605-PMP(LRL). With assistance of

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counsel, Lopez filed an amended petition on March 13, 1997. Respondents moved to

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dismiss the petition as unexhausted. The court granted the motion and dismissed the

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petition on January 15, 1998.

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Lopez’s second state post-conviction proceeding spanned from March 1998 to

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April 2001. On April 6, 2001, he filed his second federal habeas petition, which initiated

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the instant case. On November 28, 2006, after protracted discovery proceedings, Lopez

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filed his first amended habeas petition. On June 1, 2007, the parties herein filed a

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stipulation to allow Lopez to return to state court to exhaust all of his claims. The court

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granted the stipulation and stayed the proceedings in this case.

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Lopez’s third state post-conviction proceeding began in June 2007 and

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concluded in May of 2016. On June 28, 2016, this court granted Lopez’s motion to

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vacate the stay and reopen proceedings. He filed his second amended petition on

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September 6, 2016. That petition is the subject of respondents’ current motion to

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dismiss.

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II. TIMELINESS

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a

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one-year filing period for § 2254 habeas petitions in federal court. 28 U.S.C. §

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2244(d)(1). The one-year period begins to run from the latest of four possible triggering

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dates, with the most common being the date on which the petitioner’s state court

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conviction became final (by either the conclusion of direct appellate review or the

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expiration of time for seeking such review). Id. A petitioner, like Lopez, whose conviction

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became final before the enactment of AEDPA had until April 24, 1997, to file a timely
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federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).

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Statutory tolling of the one-year time limitation occurs while a “properly filed” state post-

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conviction proceeding or other collateral review is pending. 28 U.S.C. § 2244(d)(2).

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1. Initial petition.

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Respondents argue that Lopez did not initiate this proceeding until long after

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AEDPA’s one-year period had elapsed. Respondents note that Lopez’s first federal

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habeas proceeding did not toll the statutory period (see Duncan v. Walker, 533 U.S.

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167, 180–81 (2001)) and that Lopez’s subsequent state post-conviction proceeding did

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not qualify for statutory tolling under § 2244(d)(2) because it did not meet Nevada’s

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timeliness requirements (see Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005)). In

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response, Lopez argues that this court’s order dismissing his case in 1998 was, in

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essence, a stay order. Alternatively, he contends that he is entitled to equitable tolling

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from April 24, 1997, until the date he filed the initial petition that began this proceeding.

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When this court dismissed Lopez's first habeas petition in 1998, the accepted

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rule was that a district court “must dismiss” any habeas petition like Lopez's that

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presented both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509,

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522 (1982). In dismissing the petition, the court advised Lopez that he had the option of

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abandoning unexhausted claims and proceeding with his petition, but made no

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reference whatsoever to a stay, administrative closure, or permission for Lopez to “re-

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open” the proceeding in the future. ECF No. 156-20. Instead, the dismissal order

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advised him “that failure to timely commence a new federal proceeding will bar

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Petitioner from having the validity of his conviction and/or sentence reviewed in federal

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court.” Id., p. 4 (emphasis added). The order also directed the Clerk of Court to enter

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judgment, which he did on January 20, 1998. Id., p. 8; ECF No. 156-22, p. 6.

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The court sees no factual or legal basis for treating its dismissal of Lopez’s first

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federal proceeding as a stay. Of all the cases from this district Lopez cites as support to

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conclude otherwise, none of them present the same circumstances as those present in

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this case. ECF No. 172, p. 16-20. In addition, Lopez cites to no controlling authority that
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requires this court to consider the dismissal a stay. The court in Riley v. McDaniel, 786

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F.3d 719 (9th Cir. 2015), explicitly declined to reach the issue. 788 F.3d at 723 n. 5.

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Finally, Lopez alleges throughout is second amended petition in this action that

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the state court’s resolution of a given claim was not entitled to AEDPA deference as set

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forth at 28 U.S.C. § 2254(d)(1). ECF No. 126; p. 33, 344, 356. By doing so, he

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concedes that AEDPA applies to this court’s review of his current petition. This is

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inconsistent with his argument that this case is merely re-opening of his prior, pre-

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AEDPA, proceeding.

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Because Lopez initiated this proceeding well beyond the AEDPA deadline, his

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petition is time-barred unless he can establish that he is entitled to equitable tolling.

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Equitable tolling is appropriate only if the petitioner can show: (1) that he has been

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pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

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way and prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). Equitable

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tolling is "unavailable in most cases," Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.

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1999), and "the threshold necessary to trigger equitable tolling is very high, lest the

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exceptions swallow the rule," Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)

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(quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). The petitioner

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ultimately has the burden of proof on this “extraordinary exclusion.” Miranda, 292 F.3d

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at 1065. He must demonstrate a causal relationship between the extraordinary

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circumstance and the lateness of his filing. E.g., Spitsyn v. Moore, 345 F.3d 796, 799

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(9th Cir. 2003). Accord Bryant v. Arizona Attorney General, 499 F.3d 1056, 1061 (9th Cir.

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2007). Lopez cites to this court’s dismissal order, the uncertain nature of federal habeas

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law during the relevant time period, and his prior counsel’s alleged abandonment of his

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case as grounds for equitable tolling.

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Lopez is correct that this court’s dismissal order was misleading in a couple of

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important respects. First, the order stated that the dismissal of the case triggered

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Lopez’s one-year period under AEDPA. ECF No. 156-20, p. 4. As Duncan later clarified,

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however, the time Lopez had spent litigating his first federal petition in this court did not
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toll the statutory period. See 533 U.S. at 180–81. Thus, a federal petition filed the day

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after the court’s dismissal would have been untimely.

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Second, the court explained in the order that the time Lopez spent litigating his

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state post-conviction proceeding would statutorily toll the period under § 2244(d)(2).

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ECF No. 156-20, p. 4. Even though it had been approximately nine years since Lopez’s

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conviction had become final, there was not, at the time, significant cause to doubt the

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accuracy of that explanation. Indeed, the Ninth Circuit later held that a state petition was

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“properly filed” within the meaning of the AEDPA notwithstanding its noncompliance

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with Washington’s rules governing time of fling. Dictado v. Ducharme, 244 F.3d 724,

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727–28 (9th Cir. 2001). Dictado remained the law of the Ninth Circuit until Pace clarified,

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in April 2005, that untimely state post-conviction petitions are not “properly filed” under

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AEDPA, and do not toll AEDPA's statute of limitations. See Harris v. Carter, 515 F.3d

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1051, 1053 (9th Cir. 2008) (discussing the holdings in Dictado and Pace).

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Lopez presumably relied in good faith on the information in the court’s dismissal

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order and the then-current state of AEDPA jurisprudence in choosing to return to state

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court rather than abandoning his unexhausted claims and proceeding with his federal

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petition. Neither Duncan nor Pace were decided until after Lopez had filed his initial

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petition in this case. The circumstances here are analogous to those in Harris, a case in

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which the Ninth Circuit concluded that a petitioner whose petition had been rendered

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untimely by Pace was entitled to equitable tolling. See Harris, 515 F.3d at 1057. In

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Harris, the petitioner had relied in good faith on the holding in Dictado “in making his

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tactical decision to delay filing a federal habeas petition.” Id. at 1055.

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While not an exact fit, the similarities between the cases compel this court to

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conclude that its 1998 dismissal order coupled with the uncertain state of AEDPA law

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during the relevant time period amount to extraordinary circumstances, beyond Lopez's

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control, that stood in the way of his compliance with the statute of limitations. With

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regard to diligence, respondents point out that, prior to Duncan and seven months prior

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to filing his initial petition herein, the Ninth Circuit held “that section 2244(d)(2) does not
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toll the AEDPA limitations period while a federal habeas petition is pending.” See

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Jiminez v. Rice, 222 F.3d 1210, 1214 (9th Cir. 2000), reh'g granted, opinion withdrawn,

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246 F.3d 1277 (9th Cir. 2001), and on reh'g, 276 F.3d 478 (9th Cir. 2001). During that

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seven-month period, however, Lopez was litigating his state post-conviction appeal in

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the Nevada Supreme Court. ECF Nos. 152-9 through 152-26. His failure to hastily

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prepare a federal petition and file it in response to Jiminez cannot be considered lack of

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diligence.1
2. Relation back.

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Respondents note that, even if Lopez’s initial petition is timely, his second

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amended petition was filed well beyond the AEDPA statute of limitations. Accordingly,

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they argue that all claims except for Grounds 1, 2.B. (in part),2 2.E, 4.A., 5, 6, 7, 11.B,

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11.E, 11.F, 11.H, 11.I.1, 11.J, 11.L, 11.O, 11.P, 11.Q.2, 11.R, 11.T.9, 11.V, 12, 13.A,

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17, 19, 22, 23.A, 25 (in part), and 26 of the second-amended petition are untimely

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because they do not relate back to the initial petition.3

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The Supreme Court’s decision in Mayle v. Felix, 545 U.S. 644 (2005), limits a

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habeas petitioner’s ability to have newly-added claims "relate back" to the filing of an

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earlier petition and, therefore, be considered timely under 28 U.S.C. § 2244(d). The

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Court held that an amended claim in a habeas petition relates back for statute of

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limitations purposes only if it shares a "common core of operative facts" with claims

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contained in the original petition. Mayle, 545 U.S. at 663-64. The common core of

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Having concluded that Lopez’s initial petition was timely based on the foregoing, the court need not
address Lopez’s assertions related to his former counsel to the extent he claims they serve as grounds
for equitable tolling up to and including the date he filed his initial petition herein.
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Claim 2.B is a claim of prosecutorial misconduct relating to one of the State’s primary witnesses, Maria
Lopez, who was Lopez’s wife and mother of the victim. According respondents, the only portion of the
claim that relates back is that which alleges the State failed to follow statutory requirements in conferring
immunity to Maria before the grand jury proceedings.

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Respondents initially argued that Grounds 7, 11H, and 17 do not relate back, but withdrew their
arguments with respect to those claims in their reply to Lopez’s opposition to the motion to dismiss. ECF
No. 176, pp. 16, 22.

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operative facts must not be viewed at too high a level of generality, and an

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“occurrence,” for the purposes of Fed. R. Civ. P. 15(c), will consist of each separate set

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of facts that supports a ground for relief. Id. at 661. The scope of Rule 15(c) must be

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read in light of Habeas Rule 2(c), which “instructs petitioners to ‘specify all [available]

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grounds for relief’ and to ‘state the facts supporting each ground.’” Id. (alteration in

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original).
While he notes his second amended petition does not differ significantly from his

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first amended petition, filed November 28, 2006, Lopez does not seriously dispute that

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his amended petitions were both filed beyond that AEPDA deadline.4 Lopez also offers

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no argument in response to respondents’ claims that Grounds 3, 11.I.3, 11.K, 11.W, 14,

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15, 18, 20, 24, 27, and 29 do not relate back. He does argue, however, that Grounds 2,

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4.B, 8, 9, 10, 11.A, 11.C, 11.D, 11.G, 11.I.2, 11.M, 11.Q.1, 11.S, 11.T, 11.U, 11.X, 11.Y,

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11.Z, 13.B, 13.C, 13.D, 16, 21, 23.B, and 28 do relate back under Mayle.

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a. Grounds 2 and 11.X

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In Ground 2, Lopez alleges numerous instances of prosecutorial misconduct,

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including instances of failure to disclose material exculpatory and impeachment

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evidence. In Ground 11.X, he claims counsel was ineffective by not challenging the

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State’s failure to comply with its constitutional disclosure obligations.
Lopez’s initial petition contains a single vague allegation that his counsel failed to

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discover exculpatory evidence. It does not, however, contain any allegations that the

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State failed to comply with its obligation to disclose evidence. In addition, Lopez’s

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argument that the claims relate back by virtue of an attachment to his initial petition (i.e.,

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Lopez makes an argument that he is entitled equitable tolling up to the filing of his amended petition
because his former counsel, Daniel Polsenberg, was associated as counsel in his first state postconviction proceeding and continued to represent him in some capacity until allowed to withdraw from
this proceeding on March 7, 2002. Citing to Christeson v. Roper, 135 S. Ct. 891 (2015), Lopez claims
equitable tolling arises from the fact that Polsenberg could not have been expected to challenge his own
performance. Christeson is readily distinguishable in that its holding was not that petitioner was entitled
to equitable tolling, but rather, that he had been deprived of his statutory right to counsel. 135 S.Ct. at
895. Moreover, any equitable tolling arising from Polsenberg’s involvement would not extend beyond
March 7, 2002, the date he was replaced by the Federal Public Defender.

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the Nevada Supreme Court’s opinion in his direct appeal) is without merit. See Ross v.

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Williams, 896 F.3d 958, 967 (9th Cir. 2018) (noting that it would be inconsistent with

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AEDPA’s statute of limitations to allow an attachment to a petition to serve as “a

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wellspring of facts” to support new claims).

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Grounds 2 and 11.X do not relate back.

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b. Grounds 4.B and 11.I.2

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In Ground 4.B, Lopez claims the trial court improperly admitted and published a

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child-sized mannequin at trial. Ground 11.I.2 is a claim that trial counsel was ineffective

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in failing to object to the admission of hair evidence at trial. Lopez argues that these

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claims relate back to a claim he raised on direct appeal that was discussed in the

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Nevada Supreme Court’s opinion, Lopez v. State, 769 F.2d 1276, 1285 (Nev. 1989),

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which was attached to his initial petition. This argument is without merit. See Ross, 896

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F.3d at 967.

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Grounds 4.B and 11.I.2 do not relate back.

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c. Grounds 8, 9, and 11.Q.1

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In Ground 8, Lopez challenges four specific guilt phase jury instructions: the

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murder by torture instruction; the involuntary manslaughter instruction; the

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premeditation and deliberation instruction; and the implied malice instruction. In Ground

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9, Lopez specifically challenges the torture instructions given in the guilt phase and the

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penalty phase. In Ground 11.Q.1, Lopez challenges trial counsel’s failure to object to

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the four instructions identified in Ground 8.

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Lopez argues that these claims relate back to allegations in his initial petition

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asserting trial court error and ineffective assistance of counsel with regard to jury

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instructions. None of those allegations, however, address the specific instructions

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identified above. See United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (no

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relation back when the foci of the original and amended claims were different).

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Lopez’s additional argument that the claims relate back by virtue of attachments
to his initial petition is also without merit. See Ross, 896 F.3d at 967.
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Grounds 8, 9, and 11.Q.1 do not relate back.

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d. Grounds 9, 10, and 11.S

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As noted above, Ground 9 challenges the torture instructions given in the guilt

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phase and the penalty phase of Lopez’s trial. In Ground 10, Lopez alleges the Nevada

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Supreme Court conducted a faulty harmless error review upon invalidating the depravity

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of mind aggravating circumstance. Ground 11.S claims ineffective assistance of counsel

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premised on counsel’s alleged failure to move to strike the depravity of mind and torture

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aggravating circumstances.

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Lopez argues that these claims relate back to allegations in his initial petition that

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the “trial court erroneously instructed the jury on two aggravating circumstances, rather

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than one,” that “the trial court gave the jury an overly broad instruction which enlarged

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the aggravating circumstances they consider in imposing a sentence,” and there were

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“overlapping and vague aggravating circumstances.” ECF No. 172, p. 30-31 (citations

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omitted).

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None of the three claims at issue share a common core of operative facts with

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the allegations in Lopez’s initial petition. Lopez’s additional argument that the claims

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relate back by virtue of an attachment to his initial petition is also without merit. See

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Ross, 896 F.3d at 967.

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Grounds 9, 10, and 11.S do not relate back.

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e. Ground 11.A

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In Ground 11.A, Lopez alleges that trial counsel did not have sufficient resources

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to put on an adequate defense in the guilt and penalty phases of trial. Lopez’s argument

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that the claim relates back by virtue of an attachment to his initial petition is without

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merit. See Ross, 896 F.3d at 967. In addition, there is no legal authority for Lopez’s

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argument that Ground 11.A relates back because it is similar to Ground 12, a claim that

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respondents do not challenge as untimely.

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Ground 11.A does not relate back.

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f. Grounds 11.C and 13.B.C.D.
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In Ground 11.C, Lopez claims he received ineffective assistance of counsel

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because counsel failed to challenge the indictment against him on the grounds that

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Maria Lopez was improperly granted immunity and that the prosecutor made material

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misstatements of law to the grand jury. Grounds 13.B.C.D. allege, respectively, that the

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State failed to extend Maria’s immunity to post-trial proceedings, made material

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misstatements to the grand jury about Maria’s culpability, and failed to corroborate

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Maria’s testimony. Lopez argues that these claims relate back to allegations in his initial

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petition that counsel “unreasonably failed to raise on appeal the issue of the immunity

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granted to Maria Lopez, the state’s key witness.” and that the trial court erred in granting

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immunity to Maria Lopez. ECF No. 172, p. 31.

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The initial petition makes no mention of counsel failing to challenge the

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indictment or the prosecutor’s alleged misstatements of law to the grand jury. It also

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does not refer, in any manner, to the State failing to extend immunity to post-trial

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proceedings or to corroborate her testimony.

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Grounds 11.C and 13.B.C.D do not relate back.

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g. Grounds 11.D, 11.G, and 16

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In Ground 11.D, Lopez claims counsel was ineffective by failing to seek a change

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of venue due to pre-trial publicity. In Ground 11.G, he alleges that counsel performed

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ineffectively in voir dire proceedings “by failing to ask some of the jurors about exposure

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to pretrial publicity, failing to ask about exposure to childhood and domestic abuse,

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failing to ask the jurors whether they could consider life with or without parole based on

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the facts as alleged by the prosecution, and in acquiescing in the removal of a death

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scrupled juror without raising an objection.” ECF No. 126, p. 254. Ground 16 is a claim

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that the trial court erred by failing to change the venue of the trial.

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Lopez points out the that respondents acknowledge that Ground 11.E regarding

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trial counsel’s failure to voir dire jurors about child abuse relates back to the initial

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petition. He argues that Grounds 11.D and 11.G should relate back for similar reasons.

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He also points out that he alleged in the initial petition that the trial court allowed

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extensive and intense media coverage and did not sequester the jury until deliberations.

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This court agrees that Ground 11.G relates back to the allegation in Lopez’s

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initial petition that counsel failed to make an adequate voir dire. The other two claims,

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however, do not share a common core of operative facts with the allegations in the

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initial petition. Lopez’s additional argument that the claims relate back by virtue of

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attachments to his initial petition is also without merit. See Ross, 896 F.3d at 967.

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f. Ground 11.M

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In Ground 11.M, Lopez alleges that counsel was ineffective by not using a note

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Maria Lopez wrote to him to cross-examine her and to rehabilitate him. Lopez’s

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contention that this claim relates back to an allegation in his initial petition regarding

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counsel’s failure to preserve documentary evidence is plainly without merit. And, once

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again, Lopez cannot rely on unreferenced attachments as a source of facts to which

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later claims may relate back. See Ross, 896 F.3d at 967.

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g. Grounds 11.T and 11.U

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In Ground 11.T, Lopez claims counsel was ineffective by failing to present

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mitigating evidence in the penalty phase of his trial. In Ground 11.U, he claims that

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counsel was ineffective in his closing argument in the penalty phase.

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Ground 11.T relates back to Lopez’s allegations in his initial petition. ECF No. 1,
p.4. Ground 11.U does not.

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h. Grounds 11.Y, 11.Z and 28

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Grounds 11.Y, 11.Z and 28 are cumulative error claims that relate back to the

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initial petition. ECF No. 1, p. 12.

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i. Ground 21

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In Ground 21, Lopez alleges that his rights under the Confrontation Clause were

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violated by the admission of statements his victim made to Maria Lopez and statements

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Maria made to state expert Dr. Strauss. The core of operative facts supporting this claim

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are not found in Lopez’s initial petition. Lopez cannot establish relation back by citing to

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attachments to the initial petition. See Ross, 896 F.3d at 967.

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Ground 21 does not relate back.

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j. Ground 23.B

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In Ground 23.B, Lopez claims his death sentence is invalid because the jury was

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improperly instructed that it had to be unanimous in order to find the existence of

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mitigating circumstances. The initial petition makes no reference to the mitigation

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instruction being defective on this basis.

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Ground 23.B does not relate back.
3. Timeliness under § 2244(d)(1)(B & D).

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Other triggering dates under the AEDPA statute of limitations include “the date

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on which the impediment to filing an application created by State action in violation of

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the Constitution or laws of the United States is removed, if the applicant was prevented

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from filing by such State action” (28 U.S.C. § 2244(d)(1)(B)) and “the date on which the

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factual predicate of the claim or claims presented could have been discovered through

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the exercise of due diligence” (28 U.S.C. § 2244(d)(1)(D)). Lopez argues that State

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actions or omissions render Grounds 2. 10, 11.X, and 14 timely under these provisions

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and the equitable tolling doctrine.

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Despite Lopez’s citation to § 2244(d)(1)(B), he offers very little, if any, argument

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to show that a “violation of the Constitution or laws of the United States” prevented him

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from filing his petition. A claim under this provision “must satisfy a far higher bar than

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that for equitable tolling.” Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009). In

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addition, § 2244(d)(1)(B) permits a later filing date only if the impediment “altogether

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prevented him from presenting his claims in any form, to any court.” Id. at 1000

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(emphasis in original).

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Even if the State improperly failed to disclose information in violation of Brady v.

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Maryland, 373 U.S. 83 (1963), Lopez would need to show that the non-disclosure

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prevented him from filing his federal petition, which he has not done. See Wood v.
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Spencer, 487 F.3d 1, 7 (1st Cir.2007) (prosecutor's failure to produce Brady material

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was not an impediment to petitioner filing his habeas corpus petition). Thus, Lopez must

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establish that the relevant claims are timely under § 2244(d)(1)(D).

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a. Grounds 2 and 11.X

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As noted above, Ground 2 alleges numerous instances of prosecutorial

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misconduct. Among them are claims that the State presented false testimony and failed

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to disclose material exculpatory and impeachment information relating to Arturo Montes

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(Claim 2.A), Maria Lopez (Claim 2.B), and forensic evidence (Claim 2.C). Ground 11.X

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is a claim that counsel provided ineffective assistance by not challenging the State’s

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failure to comply with its constitutional disclosure obligations.
“The statute of limitations begins to run under § 2244(d)(1)(D) when the factual

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predicate of a claim ‘could have been discovered through the exercise of due diligence,’

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not when it actually was discovered.” Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir.

14

2012) (quoting 28 U.S.C. § 2244(d)(1)(D)). To take advantage of § 2244(d)(1)(D), Lopez

15

must show he was unable to discover the relevant information earlier despite his

16

exercise of “reasonable diligence.” See Quezada v. Scribner, 611 F.3d 1165, 1168 (9th

17

Cir. 2010). In this case, the question is whether Lopez did not have, or with the exercise

18

of due diligence could not have had, knowledge of the factual predicates of his claims

19

until or after November 28, 2005, one year prior to the filing of his amended petition.

20

See Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2001) (explaining the relevant dates

21

under § 2244(d)(1)(D) for district court to consider on remand).

22

Arturo Montes

23

Montes testified at trial that he lived on the same street as Lopez and witnessed

24

an incident in which Lopez came to get the victim, Jessica, who was playing with his

25

son, Peter. ECF No. 141-22, p. 215-227. He further testified that Lopez picked up

26

Jessica by her hair, then dragged her home. Id.

27
28

The evidence Lopez relies upon to show that Montes provided false testimony
includes the following: (1) evidence showing that Montes was in jail during the time that,
13

1

according to his testimony, he observed of the alleged act of abuse (ECF No. 90-2, p.

2

379-382); (2) a declaration from Montes’s half-brother, dated November 16, 2004,

3

indicating that Montes did not have a son named Peter, or any son for that matter, and

4

that he had a reputation as a serial liar (ECF No. 90-2, p. 125-26); (3) a declaration from

5

Rosalinda Ceballos, dated October 19, 2004, stating that she is the wife of Antonio

6

Ceballos, Maria Lopez’s uncle, and that, contrary to Montes’s testimony at trial, Montes

7

was not a friend of the Ceballos family, nor did he baptize her daughter (Id., p. 140-44);

8

and (4) a declaration from Montes, dated November 19, 2004, admitting that his trial

9

testimony was fabricated and “fed to [him] by the prosecutors” (Id., p. 123-24).

10

The evidence Lopez relies upon to show that the State failed to comply with

11

constitutional disclosure obligations includes the following: (1) Montes’s criminal history

12

information and other documents indicating that his name is spelled with an “s,” not a

13

“z,” which, according to Lopez, show that the State presented him under an alias at trial

14

(ECF No. 90-2, p. 334-364); (2) a declaration from a police detective, Randolph

15

Wohlers, dated July 14, 2006, in which he states that he did not have a secondary

16

assignment with the police department, which, according to Lopez, is contrary to his trial

17

testimony that he had located Montes while working that assignment (ECF No. 90-2, p.

18

1095-1100); (3) documents establishing that Montes was subject to active bench

19

warrants that were suspended during the time of his cooperation with the police in

20

Lopez’s case (ECF No. 90-2; pp. 334-64, 379-82); (4) a Nevada Law Enforcement

21

Tracking printout showing that Montes had fraudulently obtained a driver’s license using

22

an alias (ECF No. 90-2, p. 1101-02), and (5) witness vouchers showing that the State

23

was paying “witness fees” to Montes during the time he was being interviewed by

24

prosecutors (ECF No. 90-2, p. 365-67).

25

In a discovery motion filed in August 2002, Lopez expressed concerns about

26

Montes’s credibility and the State’s “knowing use of Mr. Montes’ false statements,”

27

noting, among other things, the alternate spelling of his last name. ECF No. 30, p. 20-

28

23. In opposing respondents’ motion to dismiss, Lopez does not identify the dates he
14

1

obtained much the information discussed above, but it is clear that much of it was in his

2

possession at least a year prior to November 28, 2005, and two years prior to the date

3

he filed his first amended petition. For example, the records supporting his claim that

4

Montes was in jail during the time claims to have observed of the alleged act of abuse

5

were known to Lopez prior to obtaining Montes declaration in November 2004. ECF No.

6

63, p. 9. Unlike in Quezada, a case on which Lopez heavily relies, there is no showing

7

that Lopez did not receive critical information to support his claim until after November

8

28, 2005. See Quezada, 611 F.3d at 1167-68 (explaining that claim based on withheld

9

witness compensation information was timely because State had denied the existence

10

of the information and petitioner brought the claim within a year of discovering witness

11

had admitted to being compensated). Thus, Ground 2.A is not timely under

12

§ 2244(d)(1)(D).

13

Maria Lopez

14

As noted, Maria Lopez was one of the State’s primary witnesses against Lopez.

15

In March 1987, Lopez filed a motion for new trial based on Maria’s recantation of her

16

trial testimony ECF No. 145-11. Less than a week after that motion was denied, Lopez

17

sought rehearing based on information from Detective Wohlers confirming that he had

18

made promises to Maria from the outset of his investigation in relation to her

19

immigration status and social services benefits, which was contrary to representations

20

by the prosecutor that the promises were made only after Maria had provided grand jury

21

testimony. ECF No. 145-26.

22

Lopez identifies the following as “newly discovered evidence,” in support of

23

Ground 2.B, that he obtained for the first time in the course of federal court discovery

24

proceedings: (1) a copy of an interrogation tape of the first formal statement Maria gave

25

to police containing information that was omitted from the statement given to the

26

defense at trial – most notably, that it was Maria who took Jessica out of the bathtub

27

when she was burned and that the detectives discussed releasing Maria despite not

28

having more information from her about Jessica’s injuries (ECF No. 90-2, 388-407); (2)
15

1

a Notice of Denial of Request to prosecute Maria issued January 16, 1985, prior to law

2

enforcement obtaining detailed information from her about the circumstances

3

surrounding Jessica’s death (Id., p. 200-01); (3) the statement from Maria’s aunt,

4

Rosalinda, mentioned above, in which Rosalinda also stated that police detectives

5

threatened Maria that only one person would be charged with Jessica’s murder, either

6

Lopez or her (Id., p. 140-44); (4) the statement from Detective Wohlers, mentioned

7

above, in which he also states that fear of deportation was Maria’s primary concern

8

upon being arrested (Id., p. 1095-1100); (5) INS documents which, according to Lopez,

9

suggest that efforts were being made to obtain a permanent immigration status for

10

Maria, not temporary as she had indicated in her testimony at trial (Id., p. 213-18); (6) a

11

state court order authorizing the issuance of a suspended material witness warrant to

12

be held by Detective Wohler and served on Maria if she did not comply with

13

“specifications set by [the] Court,” which were never disclosed (Id., p. 279-280); (7) an

14

ex parte motion for a Maria’s deposition, prepared by the prosecutor, but not filed, that

15

referred to the aforementioned specifications and expressing concern that Maria may

16

flee the jurisdiction before the material witness warrant could be executed (Id., p. 281-

17

83); (9) notes from a February 1985 interview of Maria taken by a counselor with the

18

Nevada Association of Latin Americans, Rosaura Tanon, indicating that Maria showed

19

no signs of sorrow or remorse, seemed more concerned about deportation than the

20

outcome of Lopez’s trial, and that Maria told her that she did not get help for Jessica

21

because Jessica begged her not to tell anyone about the abuse (Id., p. 304-08); and

22

(10) a declaration from Ted Salazar, another counselor, and correspondence to Salazar

23

from the district attorney’s office confirming that Salazar was retained and paid by the

24

prosecutor to act as an interpreter in preparing Maria for trial, the circumstances of

25

which were either not disclosed or belatedly disclosed to the defense (Id., p. 309-11,

26

325-28).

27
28

In the discovery motion filed in August 2002, Lopez articulated in significant detail
his reasons for further developing the grounds for relief now contained in Ground 2.B.
16

1

ECF No. 30, p. 17-20. Here again, it is not clear on what dates Lopez obtained much

2

the information related to Maria discussed above, but the court presumes that that, like

3

the Montes information, much of it was in his possession at least a year prior to

4

November 28, 2005. The transcription of the tape of the detectives’ initial formal

5

interview with Maria appears to have been sent to Lopez’s counsel on or about Feb 10,

6

2004. ECF No. 90-2, p. 389. Other documents include a stamp in the lower right-hand

7

corner showing they were received by Lopez’s counsel prior to 2005 (for example, the

8

Notice of Denial of Request appears to have been received May 12, 2003 (ECF No. 90-

9

2, p. 201)). In any case, Lopez does not establish that the factual predicate of Ground

10

2.B was not, or could not have been, discovered, through the exercise of reasonable

11

diligence, prior to November 28, 2005.

12

Forensic evidence

13

Ground 2.C alleges that the prosecutor withheld evidence and/or presented false

14

evidence relating to (1) the extensions chords presented at trial, (2) a single hair fiber

15

purportedly found on a black belt, (3) a single hair fiber purportedly found on a red

16

extension cord, (4) the search of Lopez’s home, and (5) the processing of hair evidence.

17

Lopez claims the State failed to disclose that, the day after Lopez was sentenced

18

to death, the prosecutor gave Detective Wohlers a brown extension cord to book into

19

evidence. The chord had been given to the prosecutor by Maria Lopez, but never

20

disclosed to the defense or introduced at trial. This information was memorialized on a

21

property report and admitted to in the declaration by Detective Wohlers. ECF No. 980-2,

22

pp. 118-19, 1099. It appears from the record that Lopez received the report in May 2003

23

pursuant to a subpoena served on the North Las Vegas Police Department. ECF No.

24

63, p. 57; ECF No. 90-2, p. 119.

25

The only other portion of Ground 2.C for which Lopez argues timeliness under

26

§ 2244(d)(1)(D) is the processing of hair evidence. At trial, the State presented the

27

testimony of hair expert, Dan Berkabile. ECF No. 141-23, p. 176-214. He testified about

28

hair comparisons he made between Jessica’s hairs and hairs found at the Lopez
17

1

residence, including clumps of hairs reported to have been found in waste baskets and

2

hairs reported to have been found on various items including extension cords, a belt,

3

and a macramé holder. Id.
Lopez cites to discrepancies between the Berkabile’s analysis of the hair

4
5

evidence and descriptions of the evidence contained in “bench notes” authored by

6

police criminalist Carla Noziglia.5 On June 28, 2006, this court granted Lopez leave to

7

serve a subpoena to depose Berkabile. ECF No. 84. In that deposition, Berkabile

8

conceded that, contrary to his trial testimony, he and Noziglia were not analyzing the

9

same hair evidence. ECF No. 90-2, p. 831-33. Based on this, this court concludes that

10

Ground 2.C is timely as to the portion of the claim alleging false testimony and improper

11

non-disclosure in relation to the processing of hair evidence. The claim is otherwise

12

barred as untimely.
Lopez offers no argument that the factual predicates of Grounds 2.D and 2.F

13
14

were not discoverable by exercise of reasonable diligence prior to November 28, 2005.

15

For the foregoing reasons, Ground 2 is time-barred (except for the portions of Grounds

16

2.B and 2.C identified above and 2.E).

17

b. Ground 10

18

As noted above, Ground 10 is a claim that the Nevada Supreme Court conducted

19

a faulty harmless error review upon invalidating the depravity of mind aggravating

20

circumstance. Lopez points out that the claim challenges the Nevada Supreme Court’s

21

decision in his third state post-conviction proceeding, which was issued on October 23,

22

2015. Because his second amended petition containing the claim was filed within one-

23

year of the decision. Ground 10 is timely.
c. Ground 14

24
25
26
27
28

5

In his second amended petition and in opposing respondents’ motion to dismiss, Lopez makes repeated
references to Noziglia’s “bench notes,” which he cites as Exhibit 14 (ECF No. 90-2, p. 103-05) to his
petition. ECF No. 126, p. 108-09; ECF No. 172, p. 59. However, that exhibit appears to be a report, not
bench notes, and it does not appear to contain the description of the lengths of the hairs upon which
Lopez relies. Even so, the court notes that the transcript of Berkabile’s deposition appears to confirm that
such notes exist as described in Lopez’s pleadings. ECF No. 90-2, p. 824-833.

18

1

In Ground 14, Lopez alleges that the grand jury that returned the indictment

2

against him was unconstitutionally selected. Lopez admits to having discovered the

3

information serving as the factual predicate of this claim in 2003. ECF No. 172, p. 60.

4

Ground 14 is time-barred.

5

Finally, there is no merit to Lopez’s arguments that he is entitled to equitable

6

tolling for Grounds 2, 11.X, and 14 due to discovery delays caused by the State and this

7

court’s scheduling orders. Early in these proceedings, the court made clear its desire to

8

have these proceedings move forward expeditiously. ECF No. 23, p. 2-3. At no point did

9

the court affirmatively mislead Lopez to believe that claims contained in his amended

10

petition that did not relate back to his earlier petition would nonetheless be considered

11

timely. Cf. Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013). In addition, he has not

12

shown that the State withheld any evidence that prevented him from filing his claims in a

13

timely manner.

14

III. PROCEDURAL DEFAULT

15

A federal court will not review a claim for habeas corpus relief if the decision of

16

the state court denying the claim rested on a state law ground that is independent of the

17

federal question and adequate to support the judgment. Coleman v. Thompson, 501

18

U.S. 722, 730-31 (1991). The Court in Coleman stated the effect of a procedural default

19

as follows:

20
21
22
23

In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless the
prisoner can 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 claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986).

24
A state procedural bar is "independent" if the state court explicitly invokes the
25
procedural rule as a separate basis for its decision. McKenna v. McDaniel, 65 F.3d
26

1483, 1488 (9th Cir. 1995). A state court's decision is not "independent" if the application

27
of a state's default rule depends on a consideration of federal law. Park v. California,
28
19

1

202 F.3d 1146, 1152 (9th Cir. 2000). Also, if the state court's decision fails “to specify

2

which claims were barred for which reasons,” the Ninth Circuit has held that the

3

ambiguity may serve to defeat the independence of the state procedural bar. Valerio v.

4

Crawford, 306 F.3d 742, 775 (9th Cir. 2002); Koerner v. Grigas, 328 F.3d 1039, 1050

5

(9th Cir. 2003).

6

A state procedural rule is "adequate" if it is "clear, consistently applied, and well-

7

established at the time of the petitioner's purported default." Calderon v. United States

8

Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (citation and internal quotation

9

marks omitted). A discretionary state procedural rule can serve as an adequate ground

10

to bar federal habeas review because, even if discretionary, it can still be “firmly

11

established” and “regularly followed.” Beard v. Kindler, 558 U.S. 53, 60-61 (2009). Also,

12

a rule is not automatically inadequate “upon a showing of seeming inconsistencies”

13

given that a state court must be allowed discretion “to avoid the harsh results that

14

sometimes attend consistent application of an unyielding rule.” Walker v. Martin, 562

15

U.S. 307, 320 (2011).

16

In Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), the court of appeals

17

announced a burden-shifting test for analyzing adequacy. Under Bennett, the State

18

carries the initial burden of adequately pleading “the existence of an independent and

19

adequate state procedural ground as an affirmative defense.” Id. at 586. The burden

20

then shifts to the petitioner “to place that defense in issue,” which the petitioner may do

21

“by asserting specific factual allegations that demonstrate the inadequacy of the state

22

procedure, including citation to authority demonstrating inconsistent application of the

23

rule.” Id. Assuming the petitioner has met his burden, “the ultimate burden” of proving

24

the adequacy of the state bar rests with the State, which must demonstrate “that the

25

state procedural rule has been regularly and consistently applied in habeas actions.” Id.

26

Respondents argue that Grounds 3, 4, 5, 6, 7, 8, 9, 10, 14, 15, 16, 18, 19, 20, 22,

27

23, 24, 25, 26, 28, 29 and portions of Grounds 2, 11, 13, 17, 21, and 27 are

28

procedurally defaulted and must be dismissed.
20

1

Respondents point out that, in Lopez’s second state post-conviction proceeding,

2

the Nevada Supreme Court concluded that Lopez’s petition had been untimely filed

3

under Nev. Rev. Stat. § 34.726 and was a successive petition under Nev. Rev. Stat.

4

§ 34.810. ECF No. 152-25. Accordingly, respondents argue that the following claims

5

presented for the first time in that proceeding are procedurally defaulted: Ground 4.A,

6

Ground 5, Ground 6; Ground 7, Ground 11J (part), Ground 11.Q.2 (part), Ground 19,

7

Ground 22, Ground 23.A, and Ground 25 (part).

8

Respondents further point out that, in Lopez’s third amended proceeding, the

9

Nevada Supreme Court once again imposed the same procedural bars – i.e., Nev. Rev.

10

Stat. § 34.726 and Nev. Rev. Stat. § 34.810. ECF No. 156-12. Accordingly, respondents

11

argue that the following claims presented for the first time in that proceeding are

12

procedurally defaulted: Ground 2 (with the exception of 2.B.5.i & j ), Ground 3, Ground

13

4.B, Ground 5, Ground 8, Ground 9, Ground 10, Ground 11C, Ground 11.D; Ground

14

11.G, Ground 11.I.2, Ground 11.I.3, Ground 11.J (regarding in limine motions), Ground

15

11.K. Ground 11.L (paragraph 3), Ground 11.N, Ground 11.Q.1, Ground 11.Q.2 [–

16

paragraph ii], Ground 11.S, Ground 11.U, Ground 11.X, Ground 11.Z, Ground 12 (as to

17

constructive denial of rights), Grounds 13.B, 13.C, 13.D, Ground 14, Ground 15, Ground

18

16, Ground 18, Ground 20, Ground 21.B, Ground 23.B, Ground 24; Ground 25 (part),

19

Ground 26, Ground 27 (except paragraphs 7 and 8), Ground 28, and Ground 29.

20

With respect to Nev. Rev. Stat. § 34.726, the Ninth Circuit Court has repeatedly

21

rejected the argument that the Nevada Supreme Court has inconsistently applied that

22

statute and has held it to be adequate to support application of the procedural default

23

doctrine. See Loveland v. Hatcher, 231 F.3d 640, 642-63 (9th Cir. 2000); Moran v.

24

McDaniel, 80 F.3d 1261, 1269-70 (9th Cir. 1996). Lopez's arguments do not place the

25

adequacy of the rule at issue, so as to shift the burden to respondents. Accordingly, this

26

court concludes that Nev. Rev. Stat. § 34.726 was a "clear, consistently applied, and

27

well-established” procedural rule at the time of Lopez’s defaults.

28
21

1

In addition, this court does not agree with Lopez’s argument that Nev. Rev. Stat.

2

§ 34.726 does not bar claims presented in his second state post-conviction proceeding

3

because the Nevada Supreme Court did not make a plain statement that it was applying

4

the rule. The Nevada Supreme Court merely made an alternative ruling that, even if

5

§ 34.726 did not bar Lopez’s petition, it would nonetheless be barred under § 34.810.

6

ECF 152-25, p. 3-4.
With respect to Nev. Rev. Stat. § 34.810, there are Ninth Circuit cases holding

7
8

the bar inadequate. See Valerio v. Crawford, 306 F.3d 742 (9th Cir. 2002), Petrocelli v.

9

Angelone, 248 F.3d 877 (9th Cir. 2001), and McKenna v. McDaniel, 65 F.3d 1483, (9th

10

Cir. 1995). The relevant dates in McKenna and Petrocelli were 1983 and 1985. See

11

McKenna, 65 F.3d at 1487-88; Petrocelli, 248 F.3d at 886. The court in Valerio found

12

that the bar was inadequate as of 1990. Valerio, 306 F.3d at 778. While respondents

13

claim that the Nevada Supreme Court has cited the provision 1,200 times, they have not

14

met “the burden of demonstrating that, since Valerio, state courts have begun to

15

regularly and consistently apply § 34.810 to habeas cases.” Riley v. McDaniel, 786 F.3d

16

719, 722 n. 4 (9th Cir. 2015).6

17

With respect to Ground 2, Lopez argues that the claim is not procedurally barred

18

because Nevada’s default rules are intertwined with federal law as applied to Ground 2

19

asserting prosecutorial misconduct. Lopez notes that the Nevada Supreme Court, in his

20

third state post-conviction proceeding, relied on a Brady analysis in determining whether

21

he could establish cause to and prejudice for the default of his Brady claims. ECF No.

22

156-12, p. 4. This argument has merit as to the portions of Ground 2 alleging a violation

23

of Brady and its progeny. See Cooper v. Neven, 641 F.3d 322, 332 (9th Cir. 2011) (“In

24

this case, the Nevada Supreme Court explicitly relied on its federal Brady analysis as

25

controlling the outcome of its state procedural default analysis.”).

26
27
28

6

This is not to say that Nevada courts have not consistently and regularly applied the bar during the relevant time
period. Respondents simply have not met their burden under Bennett by citing to actual cases demonstrating such
application.

22

As explained above, however, the only Brady claim in Ground Two that is not

1
2

time-barred is the portion of Ground 2.C alleging that the State presented false

3

testimony and improperly withheld evidence in relation to the processing of hair

4

evidence. Thus, the court concludes that that portion of Ground 2.C is not barred by the

5

doctrine of procedural default.7 In addition, The Nevada Supreme Court also addressed

6

Grounds 9 and 10 on the merits, so those claims are not procedurally defaulted. 8 ECF

7

No. 156-12, p. 12-13.
In summary, Nev. Rev. Stat. § 34.726 was an independent and adequate state

8
9

rule imposed against claims first presented in Lopez’s second and third state post-

10

conviction proceedings (other than those excepted above). Thus, this court is

11

procedurally barred from reviewing those claims unless Lopez can demonstrate cause

12

for the default and actual prejudice as a result of the alleged violation of federal law, or

13

demonstrate that failure to consider the claims will result in a fundamental miscarriage

14

of justice
Lopez argues that any procedural default or untimeliness of his claims may be

15
16

excused because he is actually innocent of first-degree murder and the death penalty. A

17

showing of “actual innocence” is a recognized method for a petitioner to establish a

18

miscarriage of justice sufficient to avoid procedural bars to consideration of the merits of

19

his petition. See Schlup v. Delo, 513 U.S. 298, 316 (1995). The actual innocence

20

gateway is also available to bypass the expiration of the statute of limitations under §

21

2244(d). McQuiggin v. Perkins, 569 U.S. 383, 386 (2013)

22

Under Schlup, “actual innocence” is established when, in light of all the evidence,

23

“it is more likely than not that no reasonable juror would have convicted [the petitioner].”

24

Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup, 513 U.S. at 327-

25
26
27
28

7

Because Lopez’s Brady claims are not barred by the procedural default doctrine, the court need not
address his arguments that he can establish cause and prejudice based on the State’s non-disclosure of
evidence.
8

As discussed above, however, Ground 9 is time-barred.

23

1

28). The petitioner must establish his factual innocence of the crime, and not mere legal

2

insufficiency. Id.; Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). Moreover,

3

“[t]o be credible, [a claim of actual innocence] requires petitioner to support his

4

allegations of constitutional error with new reliable evidence – whether it be exculpatory

5

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that

6

was not presented at trial." Schlup, 513 U.S. at 324; Calderon v. Thompson, 523 U.S.

7

538, 559 (1998). As such, a petitioner cannot meet the gateway actual-innocence

8

standard by merely alleging that there was insufficient evidence presented at trial to

9

support a finding of guilt. See House v. Bell, 547 U.S. 518, 538 (2006).

10

Here, Lopez claims that he can establish his actual innocence of first-degree

11

murder based on Maria’s recantation, Montes’s recantation, and weaknesses in the

12

physical evidence presented at trial. Having reviewed the evidence, this court is not

13

persuaded that it is sufficient to meet the relevant standard.

14

Maria’s recantation occurred in 1987, is very vague, and, with respect to specific

15

acts, disclaims only that Lopez was responsible for Jessica being burned in the bathtub

16

and that he hung her by her hair with a macramé holder on New Year’s Eve. ECF No.

17

90-2; pp. 40, 148-56. Notably, she did not disclaim her other testimony that, as

18

recounted by the Nevada Supreme Court, included Lopez “beating Jessica twice a day

19

with a belt because of the child's incontinence,” “grabbing her by the hair and dashing

20

her against the toilet bowl,” “stripping her and tying her up in a nearby shed,” “leaving

21

Jessica in a bathtub filled with cold water for two hours, and afterwards, when she could

22

not stop shivering and would not react, forcing her to drink a half glass of whiskey,”

23

“forcing the child to eat her own feces,” and “the night before Jessica died, trying to

24

force her to get up and walk, and when she was unable to do so, grabbing her by the

25

hair, throwing her against the wall, and striking her with a belt.” Lopez v. State, 769 P.2d

26

1276, 1279 (Nev. 1989). In addition, the doctor who examined Jessica, post-mortem,

27

testified that he found, not only burns, but also “extensive bruising about the right hip

28

and both arms, in particular numerous small bruises spaced about the right upper arm
24

1

suggesting forcible grasping by fingers or a hand; . . . a swollen upper lip, a ‘black eye’

2

appearance around both eyes and several bruises about the forehead; and . . . hair

3

missing from part of the scalp.” Id. Finally, allegations that Maria receive undisclosed

4

benefits in relation to her testimony is not the type of “new reliable evidence”

5

contemplated by Schlup.

6

Evidence that Montes’s trial testimony was mostly, if not entirely, fabricated is

7

troubling. It cannot be said, however, that in the absence of his testimony it is more

8

likely than not that no reasonable juror would have convicted Lopez. The same is true

9

with respect to possible discrepancies with respect to the hair evidence. Evidence other

10

than hair comparison analysis supported a finding that Jessica had been hung by her

11

hair (or at least that significant of amounts of her hair had been pulled out prior to her

12

death). Moreover, the hair comparison evidence comprised only part of the evidence

13

substantiating the extreme physical abuse Jessica endured prior to her death. It by no

14

means establishes that Lopez is actually innocent.

15

With respect to establishing that he is actually innocent of the death penalty,

16

Lopez must demonstrate “by clear and convincing evidence that, but for a constitutional

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error, no reasonable juror would have found the petitioner eligible for the death penalty

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under the applicable state law.” Sawyer v. Whitley, 505 U.S. 333, 336 (1992); see

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Schlup, 513 U.S. at 327 (recognizing the “clear and convincing” standard under Sawyer

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imposes a higher burden of proof than a showing of “more likely than not”). The Sawyer

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standard can be met by “showing that there was no aggravating circumstance or that

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some other condition of eligibility had not been met.” Id. at 345.

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In claiming that he is actually innocent of the death penalty, Lopez point out the

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one of the aggravating circumstances found by the jury (depravity of mind) has been

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invalidated by the Nevada Supreme Court. He further argues that he is not guilty of the

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other circumstance – torture – because the jury was not properly instructed that, under

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Nevada law, torture as an aggravating circumstance requires evidence that he

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“intended to inflict pain beyond the killing itself” and that the acts of torture were done
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with the “specific intent . . . to inflict pain for pain’s sake or for punishment or sadistic

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pleasure.” ECF No. 172, p. 74 (citing Domingues v. State, 917 P. 2d 1364, 1377 (Nev.

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1996).

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Even if issued proper instructions, however, a reasonable jury could have found

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that Lopez’s conduct satisfied the definition of torture. See Jenkins v. Hutton, 137 S. Ct.

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1769, 1772 (2017) (where instructional error is the subject of a Sawyer inquiry,

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reviewing court must decide whether, given proper instructions, a reasonable jury could

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have found petitioner eligible for death penalty). Lopez argues that there was no

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evidence that Lopez intended to inflict pain for sadistic pleasure, but there was evidence

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that he intended to do so for punishment. In addition, evidence that Lopez administered

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extreme physical abuse over a period of several weeks was sufficient to establish that it

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was he intended to inflict pain beyond the killing itself.

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Next, Lopez argues that he can establish cause and prejudice for claims that

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served as the basis for ineffective assistance of counsel claims properly presented in

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his first state post-conviction proceeding. There is no merit to this argument. Trial

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counsel’s alleged ineffectiveness in failing to identify or raise an issue cannot serve as

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cause for Lopez’s failure to properly present the issue in his direct appeal or in his first

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state post-conviction proceeding. Lopez’s reliance on Edwards v. Carpenter, 529 U.S.

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446 (2000), as support for his argument is misplaced in that the petitioner in that case

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was asserting ineffectiveness of appellate counsel as cause for his default. 529 U.S. at

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449. To the extent Lopez may claim that his appellate counsel’s ineffectiveness was the

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cause for his procedural defaults, he must show that that claim itself was properly

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presented to the state courts, which he has not done. See id. at 453 (holding “that an

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ineffective-assistance-of-counsel claim asserted as cause for the procedural default of

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another claim can itself be procedurally defaulted”).

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Lastly, Lopez argues that he can overcome any procedural default Ground 8.C

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and 14. Because those claims are time-barred, the court declines to address those

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arguments.
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IV. COGNIZABILITY

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Respondents challenge whether several of Lopez’s claims are cognizable in this

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federal habeas proceeding.
First, they note, with respect to Ground 3 of Lopez’s petition, that neither the U.S.

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Supreme Court nor the Ninth Circuit has decided that a petitioner may obtain habeas

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relief based on a freestanding claim of actual innocence. For reasons discussed above,

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however, Lopez is unable to meet the exacting standard necessary to establish actual

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innocence. Thus, Ground 3 is denied on that basis.
Next, they argue that Grounds 13.B, 17, and 27 are not cognizable to the extent

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they challenge state habeas proceedings. Respondents are correct. See Gerlaugh v.

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Stewart, 129 F.3d 1027, 1045 (9th Cir.1997) (errors committed during state post-

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conviction proceedings are not cognizable in a federal habeas action). The court will not

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consider the portion of Ground 17 alleging error in state post-conviction proceedings.9
Finally, respondents contend the Ground 29, wherein Lopez challenges the

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constitutionality of lethal injection as a method of execution, is not currently ripe for this

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court’s review because Lopez’s execution is not currently set. The court agrees that the

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claim is premature and, therefore, will dismiss it without prejudice on that basis. See

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Roybal v. Davis, 148 F. Supp. 3d 958, 1107 (S.D. Cal. 2015). The court declines to

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weigh in on whether such a claim must be brought under 42 U.S.C. § 1983, as opposed

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to a federal habeas proceeding.

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V. MOTION FOR EVIDENTIARY HEARING

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With his motion for an evidentiary hearing, Lopez argues that he is entitled to a

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hearing to present evidence in support of his opposition to respondents’ motion to

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dismiss. ECF No. 166. He identifies the following issues as those which warrant a

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hearing: (1) the issue of cause and prejudice to overcome any state procedural default;

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(2) the timeliness of the first amended petition; (3) his entitlement to equitable tolling;

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and (4) the non-independence and inadequacy of Nevada’s procedural default bars.

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Grounds 13.B and 27 are time-barred.

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The court has fully considered the opposing points and authorities in relation to

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respondents’ motion to dismiss. In deciding the motion as set forth above, the court

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finds that there are no material factual disputes that require the presentation of evidence

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that is not already in the court’s record. Accordingly, petitioner’s motion for an

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evidentiary hearing is denied.

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VI. CONCLUSION

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Based on the foregoing, the following claims are time-barred under § 2244(d):

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Grounds 2 (except 2.E and parts of 2.B and 2.C),10 4.B, 8, 9, 11.A, 11.C, 11.D, 11.I.2,

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11.I.3, 11.K, 11.M, 11.N, 11.Q.1, 11.S, 11.U, 11.W, 11.X,11 13.B, 13.C, 13.D, 14, 15, 16,

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18, 20, 21, 23.B, 24, and 27.
Of the claims that are not time-barred, the following claims are barred by the

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doctrine of procedural default: Grounds 2 (except part of 2.C),12 3, 4.A, 5, 6, 7, 11.G,

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11.I.3, 11.J, 11.L, 11.Z, 13.B, 13.C, 13.D, 19, 22, 23.A, 25, 26, and 28.
Ground 3 is denied on the merits. Ground 29 is dismissed without prejudice as

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premature.
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No.

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139) is GRANTED in part and DENIED in part as set forth above.
IT IS FURTHER ORDERED that respondents shall have sixty (60) days from

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the date on which this order is entered within which to file their answer to the remaining

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claims in petitioner’s second amended petition (ECF No. 126). In all other respects, the

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scheduling of this matter is governed by the scheduling order entered June 28, 2016

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(ECF No. 124).

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10

The part of Ground 2.B that is not time-barred is the part that alleges the State failed to follow statutory
requirements in conferring immunity to Maria before the grand jury proceedings. The part of Ground 2.C that is not
time-barred is that part alleges that alleges the State offered false testimony and a failed to disclose evidence in
relation to the processing of hair evidence.
11

27

Except to the extent Lopez alleges ineffective assistance of counsel in relation the portion of Ground 2.C that is
not time barred.

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12

The part identified in footnote 10.

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IT IS FURTHER ORDERED that petitioner’s motion for an evidentiary hearing
(ECF No. 166) is DENIED.
IT IS THEREFORE ORDERED that respondents’ motion for extension of time
(ECF No. 177) is GRANTED nunc pro tunc as of June 19, 2018.
DATED THIS ___ day of _____________, 2018.
27th day of September, 2018.

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UNITED STATES DISTRICT JUDGE

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