Garcia v. Williams et al

Filing 24

ORDER. IT IS ORDERED that 11 respondents' motion to dismiss is GRANTED. IT IS FURTHER ORDERED that 20 petitioner's motion for leave to file an amended petition and 22 motion for stay and abeyance are DENIED. See Order for details/deadlines. Signed by Judge James C. Mahan on 8/13/2018. (Copies have been distributed pursuant to the NEF - MR)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
10
11

DENNIS R. GARCIA,

Case No. 2:17-cv-00485-JCM-GWF
Petitioner,

v.

ORDER

12
13
14

BRIAN WILLIAMS, et al.,
Respondents.

15
16

This is a habeas corpus proceeding under 28 U.S.C. § 2254. On December 22,

17

2017, respondents filed a motion to dismiss the petition in this matter, arguing that one

18

claim is procedurally defaulted and that the other is unexhausted. Petitioner Garcia has

19

not filed a response to the motion. Instead, he first filed a motion for leave to file an

20

amended petition (ECF No. 20), then a motion for stay and abeyance (ECF No. 22).

21

1. Motion to Dismiss

22

In Ground One of his petition, Garcia claims that his conviction and sentence

23

violate his constitutional right to effective counsel because his counsel failed to

24

adequately investigate the facts underlying his case, failed to obtain exculpatory evidence

25

related to DNA testing that was not disclosed by the State prior to the guilty plea, did not

26

challenge Garcia’s pre-trial detention, and abandoned Garcia when he expressed a

27
28

1

desire to withdraw his guilty plea. Garcia raised these claims in his second state habeas

2

proceeding. ECF No. 13-10. The Nevada Court of Appeals concluded that Garcia’s

3

petition in that proceeding constituted an abuse of the writ and dismissed the claims

4

pursuant to Nev. Rev. Stat. § 34.810(2).1 ECF No. 13-30.

5

“The independent and adequate state ground doctrine prohibits the federal courts

6

from addressing the habeas corpus claims of state prisoners when a state-law default

7

prevented the state court from reaching the merits of the federal claims.” Thomas v.

8

Lewis, 945 F.2d 1119, 1122 (9th Cir. 1991). Respondents have carried the initial burden

9

of adequately pleading “the existence of an independent and adequate state procedural

10

ground as an affirmative defense.” Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003).

11

Under Bennett, the burden then shifts to the petitioner “to place that defense in issue,”

12

which the petitioner may do “by asserting specific factual allegations that demonstrate the

13

inadequacy of the state procedure, including citation to authority demonstrating

14

inconsistent application of the rule.” Id. at 586.

15

By not responding to the motion to dismiss, Garcia has not challenged the

16

independence or adequacy of Nev. Rev. Stat. § 34.810(2). Thus, he has not met his

17

burden under Bennett. Accordingly, this court is barred from considering the claims in

18

Ground 1 unless Garcia “can demonstrate cause for the default and actual prejudice as

19

a result of the alleged violation of federal law, or demonstrate that failure to consider the

20

claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501

21

U.S. 722, 750 (1991).

22

Because Ground One consists of ineffective assistance of counsel claims, Garcia

23

may attempt to rely on Martinez v. Ryan, 566 U.S. 1 (2012), to excuse his procedural

24
1

25
26
27

Nev. Rev. Stat. § 34.810(2) provides:
A second or successive petition must be dismissed if the judge or justice determines that
it fails to allege new or different grounds for relief and that the prior determination was on the
merits or, if new and different grounds are alleged, the judge or justice finds that the failure of
the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

28
2

1

default. In Martinez, the Supreme Court held that, in collateral proceedings that provide

2

the first occasion to raise a claim of ineffective assistance at trial, ineffective assistance

3

of post-conviction counsel in that proceeding may establish cause for a prisoner's

4

procedural default of such a claim. Martinez, 566 U.S. at 9. “To establish ‘cause’ to

5

overcome procedural default under Martinez, a petitioner must show: (1) the underlying

6

ineffective assistance of trial counsel claim is “substantial”; (2) the petitioner was not

7

represented or had ineffective counsel during the PCR proceeding; (3) the state PCR

8

proceeding was the initial review proceeding; and (4) state law required (or forced as a

9

practical matter) the petitioner to bring the claim in the initial review collateral proceeding.”

10

Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (citation omitted).

11

In Ground Two of his petition, Garcia claims his conviction violates his Fourteenth

12

Amendment right to due process because it was obtained by the use of false evidence,

13

specifically a DNA sample purported to have been obtained from the victim. Garcia has

14

not presented this claim to the Nevada Court of Appeals or the Nevada Supreme Court.

15

Though Garcia has yet to exhaust state court remedies for Ground 2, it is clear at

16

this point that no state remedies are currently available to him. That is, if Garcia were to

17

return to state court and present his federal habeas claims, the state courts would find

18

the claims procedurally barred as untimely and successive.2 “An unexhausted claim will

19

be procedurally defaulted, if state procedural rules would now bar the petitioner from

20

bringing the claim in state court.” Dickens, 740 F.3d at 1317. Thus, even if not exhausted

21

in the conventional sense, Ground 2 is technically exhausted and procedurally defaulted.

22

Moreover, because Ground 2 is not a claim of ineffective assistance of trial counsel,

23

Garcia cannot rely upon Martinez to excuse his procedural default of the claim. See Davila

24
25
26
27

2

Pursuant to Nev. Rev. Stat. § 34.726(1), a petition that challenges the validity of a judgment or sentence must be
filed within one year after entry of the judgment of conviction or within one year after the appellate court issues its
remittitur unless there is good cause for the delay. Pursuant to Nev. Rev. Stat. § 34.810(2), (3), a judge must dismiss
a second or successive petition if the petition fails to demonstrate good cause for the petitioner's failure to present
the claim in the original petition.

28
3

1

v. Davis, 137 S. Ct. 2058, 2070 (2017) (declining to extend the holding in Martinez beyond

2

ineffective assistance of trial counsel claims).

3

All the claims in Garcia’s petition are procedurally defaulted. This court will allow

4

Garcia one opportunity to demonstrate that the procedural default of his claims should be

5

excused under the standards set forth above. If he is unable to do so, his petition shall be

6

dismissed with prejudice.

7

2. Motion for Leave to File an Amended Petition

8

With his motion for leave to file an amended petition, Garcia claims that the errors

9

and omissions in his initial petition, as highlighted by the respondents’ motion to dismiss,

10

serve as a basis to allow him to file an amended petition. ECF No. 20. Garcia has not,

11

however, attached a proposed amended petition to his motion as required by LR 15-1 of

12

the Local Rules of Practice for this court. In addition, he does not specify, or even suggest,

13

the manner in which he intends to amend his existing petition. Thus, the motion shall be

14

denied. See Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009) (affirming denial of

15

“request to amend the complaint because Appellants did not propose any new facts or

16

legal theories for an amended complaint and therefore gave the Court no basis to allow

17

an amendment”).

18

3. Motion for Stay and Abeyance

19

With his motion for stay and abeyance, Garcia asks this court to stay proceedings

20

while he completes pending and forthcoming state court proceedings. ECF No. 22. He

21

notes that he intends to file state court pleadings asking to amend a judgment of

22

conviction in a separate, but related, case and that he is currently pursuing the appeal of

23

his third state habeas petition in this case.

24

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court condoned the use

25

of stay and abeyance to allow a petitioner to exhaust state court remedies in habeas

26

cases. To qualify for a stay, a petitioner must demonstrate “good cause for his failure to

27

exhaust, [that] his unexhausted claims are potentially meritorious, and there is no

28
4

1

indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines,

2

544 U.S. at 278.

3

As good cause, Garcia cites only to the two aforementioned state proceedings.

4

Neither proceeding, however, will exhaust any claims in Garcia’s pending federal petition.

5

See ECF Nos. 9 and 13-34. Moreover, as explained above, Garcia’s pending petition is

6

fully exhausted. As such, his request for a stay must be denied. See Rhines, 544 U.S.at

7

275–76 (purpose of stay and abeyance is to stay a “mixed petition” and hold it in abeyance

8

while the petitioner returns to state court to exhaust his previously unexhausted claims).

9

IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 11)

10

is GRANTED. Grounds One and Two shall be dismissed as procedurally defaulted unless

11

petitioner can demonstrate that his defaults should be excused on the grounds discussed

12

above. Petitioner shall have 45 days from the date this order is entered to file points and

13

authorities and submit evidence showing cause for the default and actual prejudice as a

14

result of the alleged violation of federal law, or that failure to consider the claims will result

15

in a fundamental miscarriage of justice. Respondents shall thereafter have 30 days to file

16

a response. Petitioner shall have 30 days to file a reply to respondents’ response.

17
18
19

IT IS FURTHER ORDERED that petitioner’s motion for leave to file an amended
petition (ECF No. 20) and motion for stay and abeyance (ECF No. 22) are DENIED.
DATED August 13, 2018.________, 2018.
THIS ___ day of

20
21

UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
5