Ayala v. Gentry et al

Filing 29

ORDER. IT IS HEREBY ORDERED that 25 Respondents' Motion to Partially Dismiss Second Amended Petition for Writ of Habeas Corpus is GRANTED. Ground 7 of Petitioner's second amended habeas petition 23 is DISMISSED. IT IS FURTHER ORDER ED that Respondents shall, within 90 days from the date of this order, file an answer, responding to the remaining claims in Petitioner's second amended habeas petition. IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 2 5(d), the Clerk of the Court is directed to substitute Brian E. Williams, Sr., for Jo Gentry, on the docket for this case, as the respondent warden. Signed by Judge Richard F. Boulware, II on 1/15/2019. (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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***

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OMAR AYALA,

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Case No. 2:17-cv-02093-RFB-VCF
Petitioner,

v.

ORDER

BRIAN E. WILLIAMS, SR., et al.,

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Respondents.

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Introduction
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This action is a petition for writ of habeas corpus by Nevada prisoner Omar Ayala.
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The respondents have filed a motion to dismiss Ground 7 of Ayala’s second amended
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habeas petition on the ground that the claim is barred by the statute of limitations and
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unexhausted in state court. The Court will grant the motion to dismiss, and will dismiss
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Ground 7 as barred by the statute of limitations. The Court will set a schedule for the
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respondents to file an answer responding to Ayala’s remaining claims.
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Background
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In its order on Ayala’s direct appeal, the Nevada Supreme Court described the
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factual background of this case as follows:
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Appellant Omar Ayala and his codefendants Angel Perez and
Francisco Cruz attended an illegal street race and attempted to rob a car
belonging to another group of men, then started shooting at them, killing
one person. Ayala and his codefendants were apprehended shortly after
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the incident. Ayala admitted to the police that he brought a handgun to the
race, that he and his codefendants planned to rob the owner of another
vehicle, that he fired his gun while outside of his vehicle, that he may have
been responsible for shooting the victim, and that he fired his gun out of the
window of the car as he and his group fled the scene.
Order of Affirmance, Exhibit 122, p. 1 (ECF No. 16-2, p. 2). After a jury trial in Nevada’s

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Eighth Judicial District Court (Clark County), Ayala was convicted of conspiracy to commit
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robbery, attempted robbery with the use of a deadly weapon, second-degree murder with
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the use of a deadly weapon, attempted murder with the use of a deadly weapon, assault
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with a deadly weapon, and discharging a firearm out of a motor vehicle. See id.; see also
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Judgment of Conviction, Exhibit 105 (ECF No. 15-10).
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The Nevada Supreme Court affirmed the judgment of conviction on June 20, 2012.
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See Order of Affirmance, Exhibit 122 (ECF No. 16-2).
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Ayala filed a post-conviction petition for writ of habeas corpus in the state district
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court on June 6, 2013. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit
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126 (ECF No. 16-6). The state district court held an evidentiary hearing (see Transcript
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of Evidentiary Hearing, Exhibit 135 (ECF No. 17-7)), and then denied Ayala’s petition on
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January 27, 2016. See Order Denying Petition, Exhibit 136 (ECF No. 17-8). Ayala
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appealed, and the Nevada Supreme Court affirmed on May 9, 2017. See Order of
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Affirmance, Exhibit 150 (ECF No. 18-3). The Nevada Supreme Court’s remittitur was
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issued on June 5, 2017. See Remittitur, Exhibit 152 (ECF No. 18-5).
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Ayala submitted his original pro se federal habeas corpus petition for filing,
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initiating this action, on July 31, 2017 (ECF No. 1-1).
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Counsel was appointed for Ayala, and, with counsel, he filed a first amended
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habeas petition on September 15, 2017 (ECF No. 8), and a second amended habeas
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petition on January 23, 2018 (ECF No. 23). Ayala’s second amended petition includes
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the following claims:
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Ground 1: Ayala’s federal constitutional rights were violated as a result of
“the state district court’s failure to dismiss the tainted jury pool.” Second
Amended Petition (ECF No. 23), pp. 7-11.

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Ground 2: Ayala’s federal constitutional rights were violated because of
“the state district court’s denial of Ayala’s Batson challenge to the State’s
striking of two African Americans from the jury pool.” Id. at 11-12.
Ground 3: Ayala’s federal constitutional rights were violated because of
“the state district court’s denial of the motion to sever the trial of the
defendants.” Id. at 13-14.
Ground 4: Ayala’s federal constitutional rights were violated because of
prosecutorial misconduct. Id. at 14-16.
Ground 5: Ayala’s federal constitutional rights were violated because “the
jury was not properly instructed on the elements of second degree felony
murder.” Id. at 17-20.
Ground 6: Ayala’s federal constitutional rights were violated as a result of
ineffective assistance of counsel, because his trial counsel failed “to file a
motion to suppress [his] statements to the police.” Id. at 21-23.
Ground 7: Ayala’s federal constitutional rights were violated as a result of
ineffective assistance of counsel, because his trial counsel failed “to consult
and hire an expert to challenge the toolmark identification evidence.” Id. at
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Ground 8: Ayala’s federal constitutional rights were violated because his
trial counsel was ineffective for “conceding Ayala’s guilt.” Id. at 25-27.
Ground 9: Ayala’s federal constitutional rights were violated because his
trial counsel was ineffective “for failing to raise a claim of self defense.” Id.
at 27-28.
Ground 10: Ayala’s federal constitutional rights were violated because his
“trial counsel was ineffective for failing to file a motion to sever his case from
that of his co-defendants.” Id. at 28-30.
Ground 11: Ayala’s federal constitutional rights were violated because his
“trial counsel was ineffective for failing to investigate key defense witness
Angela Soloranzo.” Id. at 30-31.
Ground 12: Ayala’s federal constitutional rights were violated because his
“trial counsel was ineffective for failing to introduce shell casings later found
at the crime scene.” Id. at 31.
Ground 13: Ayala’s federal constitutional rights were violated because “trial
counsel was ineffective for failing to object to testimony concerning
uncharged bad acts.” Id. at 32-33.
Ground 14: Ayala’s federal constitutional rights were violated because
“appellate counsel was ineffective for failing to properly brief an issue of
prosecutorial misconduct arising from the State’s improper use of the term
“gangsta.” Id. at 34-35.
Ground 15: Ayala’s federal constitutional rights were violated because
“appellate counsel was ineffective for failing to raise the claim that Ayala’s
sentence was cruel and unusual punishment.” Id. at 36-37.
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Ground 16: Ayala’s federal constitutional rights were violated because
“appellate counsel was ineffective for failing to raise the claim that the trial
court violated Ayala’s right to due process when it improperly canvassed
Ayala about trial counsel’s concession of guilt.” Id. at 37-38.
Ground 17: “The cumulative error of trial and appellate counsel’s
ineffectiveness” violated Ayala’s federal constitutional rights. Id. at 38-39.

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On March 26, 2018, Respondents filed a motion to dismiss (ECF No. 25), arguing

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that Ground 7 of Ayala’s second amended petition is barred by the statute of limitations

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and unexhausted in state court. On May 23, 2018, Ayala filed an opposition to the motion

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to dismiss (ECF No. 27), and on May 25, 2018, Respondents filed a reply (ECF No. 28).

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Discussion

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The Antiterrorism and Effective Death Penalty Act (AEDPA), enacted in 1996,

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established a one-year statute of limitations for federal habeas petitions filed by prisoners

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challenging state convictions or sentences; the statue provides:

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(1) A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of -(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. 2244(d)(1).

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The AEDPA statute of limitations is tolled during the time that a properly filed

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application for state post-conviction or other collateral review is pending in state court.

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See 28 U.S.C. § 2244(d)(2).

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A habeas petitioner is entitled to equitable tolling of the AEDPA statute of

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limitations if the petitioner shows “‘(1) that he has been pursuing his rights diligently, and

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(2) that some extraordinary circumstance stood in his way’ and prevented timely filing.”

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Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,

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418 (2005)); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).

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Ayala’s conviction became final, for purposes of the statute of limitations analysis,

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on September 18, 2012, which was ninety days after the Nevada Supreme Court ruled

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on his direct appeal. See Order of Affirmance, Exhibit 122 (ECF No. 16-2).

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Ayala initiated his state habeas action 261 days later, on June 6, 2013, tolling the

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statute of limitations under 28 U.S.C. § 2244(d)(2). See Petition for Writ of Habeas Corpus

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(Post-Conviction), Exhibit 126 (ECF No. 16-6). Ayala’s state habeas action concluded,

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and the tolling ended, on June 5, 2017, when the Nevada Supreme Court issued its

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remittitur after affirming the denial of his state habeas petition. See Remittitur, Exhibit 152

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(ECF No. 18-5).

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The remaining 104 days of the limitations period ran out on September 17, 2017.

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Ayala’s original petition in this case (ECF No. 1-1), submitted for filing on July 31, 2017,

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and his first amended petition (ECF No. 8), filed September 15, 2017, were filed before

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that date, and were timely filed. Ayala’s second amended petition (ECF No. 23), filed

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January 23, 2018, was filed after the expiration of the limitations period.

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Therefore, the question whether the claims in Ayala’s second amended petition

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are barred by the statute of limitations turns on the determination whether those claims

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relate back to his original petition or first amended petition.

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In Mayle v. Felix, 545 U.S. 644 (2005), the Supreme Court held that “[s]o long as

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the original and amended petitions state claims that are tied to a common core of

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operative facts, relation back will be in order,” but “[a]n amended habeas petition ... does

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not relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new

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ground for relief supported by facts that differ in both time and type from those the original

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pleading set forth.” Mayle, 545 U.S. at 650, 664.
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Respondents’ contend that Ground 7 in Ayala’s second amended petition does not

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relate back to any claim in Ayala’s original or first amended petition. See Motion to

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Dismiss (ECF No. 25), p. 12. In Ground 7, Ayala claims that his federal constitutional

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rights were violated as a result of ineffective assistance of counsel, because his trial

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counsel failed “to consult and hire an expert to challenge the toolmark identification

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evidence.” See Second Amended Petition (ECF No. 23), pp. 24-25.

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In response, Ayala argues that Ground 7 relates back to Grounds 6C, 6D and 6F

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of his first amended petition. See Opposition to Motion to Dismiss (ECF No. 27), pp. 5-6.

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Ground 6C of Ayala’s first amended petition was a claim that his trial counsel was

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ineffective for not asserting that he acted in self-defense. See First Amended Petition

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(ECF No. 8), pp. 41-42. Ground 6D of Ayala’s first amended petition was a claim that his

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trial counsel was ineffective for not moving to sever his case from that of his co-

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defendants. See id. at 42-44. Ground 6F of Ayala’s first amended petition was a claim

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that his trial counsel was ineffective for failing to introduce into evidence shell casings

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found at the crime scene, because “[t]he presence of shell casings supports what could

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have been a self-defense theory, and certainly for example meets the ‘some’ evidence

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standard to have received a jury instruction concerning self-defense.” See Id. at 45-46.

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There is nothing alleged in any of those claims regarding the State’s toolmark evidence.

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There is no mention in any of those claims of Ayala’s counsel’s failure to hire a toolmark

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expert. And, even more generally, there is no allegation in those claims that Ayala’s trial

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counsel should have challenged the notion that Ayala, rather than either of his co-

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defendants, fired the fatal shot; the gist of Grounds 6C, 6D and 6F of Ayala’s first

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amended petition was that Ayala’s trial counsel should have pursued a self-defense

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theory. Ground 7 of Ayala’s second amended petition does not share a common core of

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operative fact with Grounds 6C, 6D and 6F of his first amended petition, and, therefore,

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does not relate back to those claims. As Ground 7 does not relate back to Ayala’s original

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or first amended petition, it is barred by the statute of limitations, and it will be dismissed

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on that ground.
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The Court need not reach, and declines to reach, the question whether Ground 7
is unexhausted in state court or procedurally defaulted.

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IT IS THEREFORE HEREBY ORDERED that Respondents’ Motion to Partially

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Dismiss Second Amended Petition for Writ of Habeas Corpus (ECF No. 25) is GRANTED.

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Ground 7 of Petitioner’s second amended habeas petition (ECF No. 23) is DISMISSED.

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IT IS FURTHER ORDERED that Respondents shall, within 90 days from the date

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of this order, file an answer, responding to the remaining claims in Petitioner’s second

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amended habeas petition. In all other respects, the schedule for further proceedings set

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forth in the order entered October 25, 2017 (ECF No. 21) remains in effect.

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IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure

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25(d), the Clerk of the Court is directed to substitute Brian E. Williams, Sr., for Jo Gentry,

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on the docket for this case, as the respondent warden.

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DATED THIS 15th day of Janaury, 2019.

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RICHARD F. BOULWARE, II,
UNITED STATES DISTRICT JUDGE

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