Guerrero v. Williams et al

Filing 98

ORDER. IT IS HEREBY ORDERED that 87 respondents' motion to dismiss is GRANTED in part. IT IS FURTHER ORDERED that Guerrero has until 9/21/18, to inform the court of his option. See Order for further details. Signed by Judge Jennifer A. Dorsey on 8/23/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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4

Pablo Ramon Guerrero,

Case No.: 2:13-cv-00328-JAD-CWH

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Petitioner

Order Granting in Part Motion to Dismiss

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v.

7

Brian E. Williams, et al.,

[ECF No. 87]

Respondents

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9

Counseled petitioner Pablo Ramon Guerrero petitions for a writ of habeas corpus under

10 28 U.S.C. § 2254, arguing that several of his constitutional rights were violated during the
11 criminal proceedings that resulted in his conviction of more than 10 crimes. 1 Respondents move
12 to dismiss many of Guerrero’s claims as noncognizable, unexhausted, or procedurally defaulted. 2
13 I find that three claims are noncognizable, seven claims are wholly procedurally defaulted, and
14 two claims are partially procedurally defaulted, so I grant the motion in part and dismiss them. I
15 also find that one claim is unexhausted, which makes Guerrero’s petition a mixed one. I
16 therefore instruct Guerrero to choose one of three options for proceeding in this case, and I defer
17 my ruling on the surviving, exhausted claims until a later time.
18

Background

19

Guerrero was convicted in 2003 of many crimes including burglary; preventing or

20 dissuading a victim from reporting a crime; sexual assault; conspiracy to commit burglary;
21 burglary while in possession of a firearm; conspiracy to commit kidnapping; first-degree
22 kidnapping while using a deadly weapon; first-degree kidnapping while using a deadly weapon
23 resulting in substantial bodily harm; conspiracy to commit murder; attempted murder while using
24 a deadly weapon; conspiracy to commit robbery while using a deadly weapon; robbery while
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1

ECF No. 26.

2

ECF No. 87.

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1 using a deadly weapon; and grand larceny. 3 He was sentenced to a total of 30 years to life, and
2 his judgment of conviction was entered on March 31, 2004. 4
The Nevada Supreme Court affirmed in part the denial of his direct appeal on June 15,

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4 2005. 5 The Court then sua sponte reversed Guerrero’s conviction for conspiracy to commit
5 robbery because the state district court erroneously used the deadly-weapon enhancement, which
6 resulted in a consecutive term of 24–60 months. 6 Remittitur issued on July 12, 2005, 7 and an
7 amended judgment of conviction was entered on August 15, 2005. 8
Guerrero filed a proper person state postconviction petition for writ of habeas corpus on

8

9 June 6, 2006. 9 The state district court appointed counsel, who filed a supplemental petition. 10
10 After an evidentiary hearing, the state district court denied the petition. 11 Guerrero’s counsel
11 presented just one claim on appeal to the Nevada Supreme Court, who then affirmed the denial
12 of the petition on January 16, 2013. 12 Remittitur issued on February 12, 2013. 13 Guerrero
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15
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3

ECF No. 37-8.

4

ECF Nos. 31-4; 39-3.

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5

ECF No. 56.

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6

Id. at 15–16.

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7

ECF No. 56-2.

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8

ECF No. 41-4.

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9

ECF No. 32.

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ECF No. 32-3.

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ECF No. 33-1.

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ECF No. 33-4.

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10

ECF No. 33-5.

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1 dispatched his federal habeas corpus petition on February 19, 2013. 14 This court appointed
2 counsel, and Guerrero filed a counseled second-amended petition on December 16, 2013. 15
On May 19, 2015, I granted in part respondents’ first motion to dismiss, concluding that

3

4 several claims were unexhausted and staying this case pending the resolution of Guerrero’s state
5 postconviction proceedings. 16 On August 3, 2017, I granted Guerrero’s motion to reopen this
6 case. 17 Respondents now, once again, move to dismiss many of Guerrero’s claims as
7 noncognizable, unexhausted, or procedurally defaulted. 18
Discussion

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9 A.

Some of Guerrero’s claims are noncognizable.
A state prisoner is entitled to federal habeas relief only if he is being held in custody in

10

11 violation of the constitution, laws, or treaties of the United States. 19 Unless an issue of federal
12 constitutional or statutory law is implicated by the facts presented, the claim is not cognizable
13 under federal habeas corpus. 20
In his second-amended petition, Guerrero adds ground 22, claiming that he is actually

14

15 innocent of conspiracy to commit murder and attempted murder with use of a deadly weapon. 21
16 Respondents argue that this claim is untimely because it doesn’t relate back to the timely-filed
17 first-amended petition. 22 Respondents also point out that the United States Supreme Court has
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19

14

ECF No. 6.

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15

ECF No. 26.

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16

ECF No. 78.

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17

ECF No. 82.

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18

ECF No. 87.

19

28 U.S.C. § 2254(a).

20

Estelle v. McGuire, 502 U.S. 62, 68 (1991).

21

ECF No. 26 at 154–60.

22

ECF No. 87 at 4–5.

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1 not held that a freestanding claim of actual innocence is cognizable on federal habeas review. 23 I
2 agree, and I dismiss ground 22 as noncognizable.
Next, in grounds 12 and 17, Guerrero argues that his trial and appellate counsel violated

3

4 Batson v. Kentucky. 24 His main complaint appears to be that his own defense counsel
5 discriminated based on gender when he exercised nearly all of his peremptory challenges against
6 male prospective jurors. Respondents point out that a Batson challenge addresses the State’s
7 purposeful or deliberate violation of the petitioner’s constitutional rights in exercising
8 peremptory challenges against prospective jurors. Because grounds 12 and 17 do not state
9 claims for which federal habeas relief may be granted, they are dismissed as noncognizable.
10 B.

Many of Guerrero’s claims are procedurally defaulted.

11

The Antiterrorism and Effective Death Penalty Act (AEDPA), allows this court to grant

12 habeas relief if the relevant state court decision was either: (1) contrary to clearly established
13 federal law as determined by the Supreme Court; or (2) involved an unreasonable application of
14 clearly established federal law as determined by the Supreme Court. 25
“Procedural default” refers to the situation where a petitioner in fact presented a claim to

15

16 the state courts, but the state courts disposed of the claim on procedural grounds instead of the
17 merits. A federal court will not review a claim for habeas corpus relief if the decision of the state
18 court regarding that claim rested on a state-law ground that is independent of the federal question
19 and adequate to support the judgment. 26 Federal habeas review of a procedurally defaulted claim
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23

Id. at 10–11; see McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We have not resolved
whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual
22 innocence.”); Gimenez v. Ochoa, 821 F.3d 1136, 1143 (9th Cir. 2016) (“The Supreme Court has
never recognized ‘actual innocence’ as a constitutional error that would provide grounds for
23 relief without an independent constitutional violation.”).
24 24
Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that the Equal Protection Clause forbids
25 the prosecutor from challenging potential jurors solely on account of their race). ECF No. 26 at
88–94, 129–31.
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25
28 U.S.C. § 2254(d).
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26
Coleman v. Thompson, 501 U.S. 722, 730–31 (1991).
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1 is not available “unless the prisoner can demonstrate cause for the default and actual prejudice as
2 a result of the alleged violation of federal law, or demonstrate that failure to consider the claims
3 will result in a fundamental miscarriage of justice.” 27
To demonstrate cause for a procedural default, the petitioner must be able to “show that

4

5 some objective factor external to the defense impeded” his efforts to comply with the state
6 procedural rule. 28 For cause to exist, the external impediment must have prevented the petitioner
7 from raising the claim. 29 To demonstrate a fundamental miscarriage of justice, a petitioner must
8 show the constitutional error complained of probably resulted in the conviction of an actually
9 innocent person. 30 “‘[A]ctual innocence’ means factual innocence, not mere legal
10 insufficiency.” 31 This is a narrow exception and is reserved only for extraordinary cases. 32 Bare
11 allegations unsupplemented by evidence do not tend to establish actual innocence sufficient to
12 overcome a procedural default. 33
Respondents argue that grounds 1–10, 13, 14, 16, 18–21, and part of ground 15 are

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14 procedurally barred. 34 I previously found these claims unexhausted prior to granting a stay and
15 abeyance. 35 The Nevada Supreme Court affirmed the dismissal of Guerrero’s second state
16 habeas petition as untimely, successive, and barred by the doctrine of laches. 36 The Ninth
17
27

Id. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986).

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28

Murray, 477 U.S. at 488.

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29

See McCleskey v. Zant, 499 U.S. 467, 497 (1991).

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30

Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).

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31

Bousley v. United States, 523 U.S. 614, 623 (1998).

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32

Sawyer v. Whitley, 505 U.S. 333, 340 (1992).

33

Thomas v. Goldsmith, 979 F.2d 746, 750 (9th Cir. 1992).

34

ECF No. 87 at 8–9.

35

ECF No. 78.

36

ECF No. 88-25; NEV. REV. STAT. §§ 34.810(1)(b), 34.726(1).

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1 Circuit Court of Appeals has held that, at least in non-capital cases, application of the procedural
2 bars at issue in this case—NRS § 34.810 and 34.726—are independent and adequate state
3 grounds. 37 So, the Nevada Supreme Court’s determination that federal grounds 1–10, 13, 14, 16,
4 18–21, and part of ground 15 were procedurally barred was an independent and adequate ground
5 to affirm the denial of the claims in the state petition.
6

Guerrero bears the burden of proving good cause for his failure to present the claims and

7 actual prejudice. 38 Guerrero contends that he can demonstrate cause and prejudice to excuse this
8 default under Martinez v. Ryan 39 because he received ineffective assistance of state
9 postconviction counsel. 40 The Supreme Court initially held in Coleman v. Thompson that
10 ineffective assistance of counsel in postconviction proceedings does not establish cause for the
11 procedural default of a claim. 41 But in Martinez, the Court established a “narrow exception” to
12 that rule:
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15
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Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing
a substantial claim of ineffective assistance at trial if, in the initialreview collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective. 42

17 The Ninth Circuit has provided guidelines for applying Martinez, summarizing the analysis as
18 follows:
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20

To demonstrate cause and prejudice sufficient to excuse the
procedural default, therefore, Martinez . . . require[s] that
[petitioner] make two showings. First, to establish “cause,” he
must establish that his counsel in the state postconviction

21
37
Vang v. Nevada, 329 F.3d 1069, 1073–75 (9th Cir. 2003); see also Bargas v. Burns, 179 F.3d
22 1207, 1210–12 (9th Cir. 1999).
23 38
Coleman, 501 U.S. at 750; see also Murray, 477 U.S. at 485.
24 39
Martinez v. Ryan, 566 U.S. 1 (2012).
25
40
ECF No. 95 at 5–10.
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41
Coleman, 501 U.S. at 750.
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42
Martinez, 566 U.S. at 17.
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proceeding was ineffective under the standards of Strickland [v.
Washington, 466 U.S. 668 (1984)]. Strickland, in turn, requires
him to establish that both (a) post-conviction counsel’s
performance was deficient, and (b) there was a reasonable
probability that, absent the deficient performance, the result of the
post-conviction proceedings would have been different. Second, to
establish “prejudice,” he must establish that his “underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
has some merit.” 43

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5
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Grounds 1, 2, 3, 13, and 18 are substantive claims of insufficient evidence, double

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8 jeopardy, trial-court error, and prosecutorial misconduct. 44 Parts of ground 15 and 16 also allege
9 trial-court error. 45 A Martinez analysis may only be invoked when the underlying claims are
10 ineffective-assistance-of-trial-counsel claims. Accordingly, Martinez cannot save grounds 1, 2,
11 3, 13, 18, and the trial-court-error claims in grounds 15 and 16, so I dismiss them as procedurally
12 barred.
Ground 21 is a claim of ineffective assistance of appellate counsel. 46 But in Davila v.

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14 Davis, 47 the United States Supreme Court declined to expand the “narrow” Martinez exception to
15 claims of ineffective assistance of appellate counsel. So Guerrero cannot demonstrate cause and
16 prejudice under Martinez to overcome default of this ground. Ground 21 is therefore dismissed
17 as procedurally barred.
Grounds 14, 15, and 16 assert ineffective assistance of both trial and appellate counsel. 48

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19 The portions of the claims relating to ineffective appellate counsel are also dismissed as
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21
22

43

Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014) (citations omitted).

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44

ECF No. 26 at 12–21, 94–96, 131–140.

45

Id. at 112–120; 124–125.

46

ECF No. 26 at 151–54.

47

Davila v. Davis, 137 S. Ct. 2058, 2065 (2017).

48

ECF No. 26 at 96–128.

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1 procedurally barred. Finally, the remaining claim in ground 14 is duplicative of ground 5.
2 Ground 14 is, therefore, dismissed in its entirety.
Grounds 5–10, 19, 20, and the remaining claims in grounds 4, 15, and 16 are all claims of

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4 ineffective assistance (IAC) of trial counsel:
•

5

Ground 4(2): trial counsel was ineffective for failing to investigate employees at the
McDonald’s and gas station where Guerrero and the victim stopped; 49

6
•

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Ground 4(3): counsel failed to investigate and become familiar with what physical
evidence was and was not found in the van; 50

8
•

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Ground 4(4): counsel failed to investigate Brenda’s past psychological instability and
to consult with psychological experts regarding Guerrero’s state of mind that day; 51

10
•

11

Ground 4(5): counsel failed to investigate Guerrero’s place of employment and to
procure character witnesses; 52

12
13

•

Ground 5: counsel failed to move to sever Guerrero’s trial from his codefendant’s; 53

14

•

Ground 6: counsel failed to inform the court before trial started that Guerrero was
going to testify in order to avoid any Bruton issues; 54

15
•

16

Ground 7: counsel failed to adequately prepare for trial by speaking to the victim

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about letters that Guerrero wrote her while he was in jail, interviewing and

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subpoenaing Detective Rogers to testify, and counsel failed to adequately cross-

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examine the victim, Sergeant Cervantes, and Detective Rogers; 55

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21

49

ECF No. 26 at 21–26.

22

50

Id. at 26–28.

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51

Id. at 28.

52

Id. at 28–29.

53

Id. at 30–42.

54

Id. at 42–44 (referencing Bruton v. United States, 391 U.S. 123 (1968)).

55

Id. at 44–70.

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1

•

Ground 8: counsel failed to properly prepare Guerrero to testify at trial; 56

2

•

Ground 9: counsel failed to object at critical moments during trial; 57

3

•

Ground 10: counsel failed to object to jury instructions that either shifted or lessened
the State’s burden of proof as to each element of the crimes charged; 58

4
•

5

Ground 15: counsel failed to object to improper jury instructions and failed to join in
on an instruction offered by his codefendant; 59

6
7

•

Ground 16: counsel failed to object to the misconduct of codefendant’s counsel; 60

8

•

Ground 19: counsel pursued an unreasonable defense theory; 61

9

•

Ground 20: counsel failed to challenge codefendant’s defense and failed to

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investigation allegations that codefendant was a gang member, which would have

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weakened codefendant’s defense that he acted under duress. 62
The Martinez analysis with respect to these claims appears intertwined, to a large extent,

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13 with the analysis of the underlying merit of the claims. The only claim that is currently subject
14 to disposition on the merits is ground 11, in which Guerrero alleges that trial counsel was
15 ineffective when he failed to request a jury instruction on Guerrero’s theory of defense regarding
16 the sexual assault charges. 63 In light of the fact that ground 11 will be briefed on the merits, the
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56

Id. at 70–73.

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57

Id. at 74–80.

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58

Id. at 80–85.

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59

Id. at 107–20, 122–24.

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60

Id. at 124–128.

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61

Id. at 140–47.

62

Id. at 147–50.

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26

63

ECF No. 26 at 85–88. Ground 15 also contains the claim that counsel was ineffective for
27 failing to request a jury instruction on Guerrero’s theory of defense regarding the sexual assault
charges. So, that portion of ground 15 is dismissed as duplicative.
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9

1 court will defer a decision on whether Guerrero can show cause and prejudice under Martinez to
2 excuse the default of the other ineffective-assistance-of-trial-counsel claims listed above.
3 C.

One of Guerrero’s claims is unexhausted.

4

State prisoners seeking federal habeas relief must exhaust the remedies available in the

5 state courts unless “there is an absence of available State corrective process” or “circumstances
6 exist that render such process ineffective to protect the rights of the applicant.” 64 The purpose of
7 the exhaustion rule is to give the state courts a full and fair opportunity to resolve federal
8 constitutional claims before those claims are presented to the federal court, and to “protect the
9 state courts’ role in the enforcement of federal law.” 65 A claim remains unexhausted until the
10 petitioner has given the highest available state court the opportunity to consider the claim
11 through direct appeal or state collateral review proceedings. 66
A habeas petitioner must “present the state courts with the same claim he urges upon the

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13 federal court.” 67 The federal constitutional implications of a claim, not just issues of state law,
14 must have been raised in the state court to achieve exhaustion. 68 To achieve exhaustion, the state
15 court must be “alerted to the fact that the prisoner [is] asserting claims under the United States
16 Constitution” and given the opportunity to correct alleged violations of the prisoner’s federal
17 rights. 69 It is well settled that 28 U.S.C. § 2254(b) “provides a simple and clear instruction to
18 potential litigants: before you bring any claims to federal court, be sure that you first have taken
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64

28 U.S.C. § 2254(b)(1).

65

Rose v. Lundy, 455 U.S. 509, 518 (1982); O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999);
22 see also Duncan v. Henry, 513 U.S. 364, 365 (1995).
23

66

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67

Picard v. Connor, 404 U.S. 270, 276 (1971).

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68

Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276)).

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69

See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374,
376 (9th Cir. 1981).
24

28

Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
Cir. 1999).
10

1 each one to state court.” 70 “[G]eneral appeals to broad constitutional principles, such as due
2 process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”71
3 However, citing to state caselaw that applies federal constitutional principles will suffice. 72
A claim is not exhausted unless the petitioner has presented to the state court the same

4

5 operative facts and legal theory upon which his federal habeas claim is based. 73 The exhaustion
6 requirement is not met when the petitioner presents to the federal court facts or evidence which
7 place the claim in a significantly different posture than it was in the state courts, or where
8 different facts are presented at the federal level to support the same theory. 74
In ground 4(1), Guerrero asserts that trial counsel was ineffective for failing to investigate

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10 several witnesses, namely Albert Somochi and Maricela Guerrero (Guerrero’s cousin and sister,
11 respectively), members of the Las Vegas police gang unit or other gang experts, and county jail
12 officials. 75 Respondents are correct that Guerrero did not present these claims to the highest
13 state court. 76 Ground 4(1) is therefore unexhausted.
14 D.

Guerrero’s petition is mixed.

15

A federal court may not entertain a habeas petition unless the petitioner has exhausted

16 available and adequate state court remedies with respect to all claims in the petition. 77 A
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18
70

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20

Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520
(1982)).
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted).

72

Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).

73

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71

Bland v. California Dept. of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994).

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23
74

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25

See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d
1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev. 1984).
75

ECF No. 26 at 22–24.

76

See ECF No. 88-5.

77

Rose v. Lundy, 455 U.S. 509, 510 (1982).

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1 “mixed” petition containing both exhausted and unexhausted claims is subject to dismissal. 78
2 Because I find that ground 4(1) is unexhausted Guerrero has these options:
3

1.

He may submit a sworn declaration voluntarily abandoning the
unexhausted claim in his federal habeas petition, and proceed only on the
exhausted claims;

2.

He may return to state court to exhaust his unexhausted claims, in which
case his federal habeas petition will be denied without prejudice; or

3.

He may file a motion asking this court to stay and abey his exhausted
federal habeas claims while he returns to state court to exhaust his
unexhausted claim.

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9

With respect to the third option, as Guerrero is aware, a district court has discretion to

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stay a petition that it may validly consider on the merits. 79 But a stay and abeyance is only
granted if the petitioner can show that his unexhausted claims aren’t plainly meritless and that
there was good cause for his failure to exhaust those claims in state court. 80 If Guerrero wishes
to ask for a stay, he must file a motion for stay and abeyance, demonstrating these two
requirements. Respondents would then be granted an opportunity to respond, and Guerrero to
reply. Guerrero is also advised to familiarize himself with the limitations periods for filing
federal habeas petitions contained in 28 U.S.C. § 2244(d), because those limitations periods may
have a direct and substantial effect on whatever choice he makes regarding his petition.
As discussed above, a decision on the trial IAC claims in grounds 4–10, 15, 16 and 20 is

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21

deferred until the merits review. Thus, the parties must brief the merits of these claims and
ground 11 in the answer and reply.
Conclusion

22

Accordingly, IT IS HEREBY ORDERED that respondents’ motion to dismiss [ECF No.

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87] is GRANTED in part as follows:

25
78

Id.

79

Rhines v. Weber, 544 U.S. 269, 276 (2005).

80

Id. at 277.

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27
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12

1

•

Grounds 12, 17, and 22 are DISMISSED as noncognizable in federal habeas and/or for
failure to state a claim;

2
3

•

Grounds 1, 2, 3, 13, 14, 18, and 21 are DISMISSED as procedurally barred;

4

•

All claims in grounds 15 and 16 are DISMISSED as procedurally barred except the
ineffective assistance of trial counsel claims;

5
6

•

Decisions on grounds 4–10, 20, and the trial IAC claims in grounds 15 and 16 are
DEFERRED;

7
8

•

9

IT IS FURTHER ORDERED that Guerrero has until September 21, 2018, to inform

Ground 4(1) is UNEXHAUSTED.

10 the court which one of the following three options he chooses: (1) inform this court in a sworn
11 declaration that he wishes to formally and forever abandon the unexhausted ground for relief in
12 his federal habeas petition and proceed on the exhausted grounds; OR (2) inform this court in a
13 sworn declaration that he wishes to dismiss this petition without prejudice in order to return to
14 state court to exhaust his unexhausted claim; OR (3) file a motion for a stay and abeyance,
15 asking this court to hold his exhausted claims in abeyance while he returns to state court to
16 exhaust his unexhausted claim. If Guerrero fails to choose one of these options by this court17 ordered deadline, his petition will be DISMISSED.
18

If Guerrero chooses to file a motion for a stay and abeyance, or seek other appropriate

19 relief, respondents may respond to it according to Local Rule 7-2.
20

IT IS FURTHER ORDERED that if Guerrero elects to abandon his unexhausted ground,

21 respondents will have 30 days from the date Guerrero serves his declaration of
22 abandonment in which to file an answer to Guerrero’s remaining grounds for relief. The answer
23 must contain all substantive and procedural arguments for all surviving grounds of the petition
24 and comply with Rule 5 of the Rules Governing Proceedings in the United States District Courts
25 . . .
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13

1 under 28 U.S.C. §2254. Guerrero will then have 30 days from the date of service of
2 respondents’ answer to file a reply.
3

Dated: August 23, 2018
_______________________________
U.S. District Judge Jennifer A. Dorsey

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