Guillen-Rico v. United States of America

Filing 11

ORDER that the petition for a writ of habeas corpus, as amended, shall be DISMISSED without prejudice for lack of exhaustion. The Clk shall enter final judgment accordingly, dismissing this action without prejudice. FURTHER ORD that, the Clk shall serve a cpy of this ord and the final judgment upon Rs by sending same by cert mail (7003 2260 0003 9700 6227) to the Office of the AG. Sent on 4/3/2009. No response is required from the Rs in this matter. Signed by Judge Edward C. Reed, Jr on 4/2/2009. (Copies have been distributed pursuant to the NEF - KL)

1 2 3 4 5 6 7 8 9 10 11 vs. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This habeas matter under 28 U.S.C. § 2254 comes before the Court on the pending sua sponte inquiry into whether the petition, as amended, should be dismissed because none of the claims were exhausted and for initial review of the second amended petition (#10) under Rule 4 of the Rules Governing Section 2254 Cases. The filing of the second amended petition was necessary because petitioner had not named the proper respondent in his prior pleadings. The petitioner previously responded to the Court's show cause order (#4) on the exhaustion issue in his motion to commence proceedings. He attaches another copy of this prior response with his second amended petition, and he further seeks to excuse the lack of exhaustion in his responses to the exhaustion inquiries in the petition form. The papers submitted reflect the following facts, which are accepted as true for purposes of the current review only. Petitioner Salvador Guillen-Rico was convicted on or about November 11, 2007, in Nevada state court, pursuant to a guilty plea, of conspiracy to sell a controlled substance, to wit, methamphetamine. He was sentenced to 12 to 36 months UNITED STATES OF AMERICA et al., Respondents. ORDER SALVADOR GUILLEN-RICO, Petitioner, 3:08-cv-00467-ECR-VPC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

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imprisonment. Petitioner did not file a direct appeal from the judgment of conviction, and he has not filed a state post-conviction petition or any other requests for collateral review in the state courts. Petitioner was paroled by state authorities in early 2008, and he currently is in federal immigration custody in Arizona awaiting removal from the United States. Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his state court remedies on a claim before presenting that claim to the federal courts. To satisfy this exhaustion requirement, the claim must have been fairly presented to the state courts completely through to the highest court available, in this case the Supreme Court of Nevada. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). The exhaustion requirement insures that the state courts, as a matter of federal-state comity, will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees. See,e.g., Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). In the present case, petitioner has completely failed to exhaust any of his claims. Petitioner contends that he should not be required to exhaust his state judicial remedies because he did not know that he was going to be facing removal from the United States as a consequence of his plea at the time of his plea. He maintains that he was led to believe by his counsel that he would be placed on probation but he instead was sentenced to 12 to 36 months. He further contends that he has no available remedies in the state courts because his claims now would be time-barred in the state courts. Petitioner's alleged ignorance of the immigration consequences of his plea does not provide a basis for his proceeding directly to federal court. His allegation that he did not know that there were immigration consequences to pleading guilty to a felony drug offense as a non-citizen perhaps may have some relevance to the merits of his claims.1 But it does not provide a basis for failing to present his claims to the state courts in the first instance.

T h e Court notes, however, that paragraph 13 of the guilty plea agreem e n t attached with #8 states: "I u n d e r s t a n d that this plea and resulting conviction m a y have adverse effects upon m y residency in this country if I am not a U.S. Citizen." (em p h a s is in original)

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This conclusion applies with even greater force to the petitioner's allegation that he was led to believe that he would be placed on probation but instead received a prison sentence. If petitioner did not receive the sentence that he allegedly was led to believe that he would receive, the onus was upon him to challenge his conviction and sentence in the state courts. His failure to seek relief until after he was paroled by state authorities does not provide a basis for avoiding the exhaustion requirement. Petitioner's further contention that exhaustion should be excused for lack of available state remedies similarly is unpersuasive. First, petitioner filed his original federal petition in this matter within the one-year period for filing a state post-conviction petition. There was no valid reason why petitioner could not have instead sought relief first in the state courts. He simply bypassed the state courts. Second, the grounds for avoiding a procedural bar in the Nevada state courts, such as the state post-conviction time-bar, are substantially the same in the state courts as they are in federal court.2 Thus, if petitioner is able to overcome the state time bar by, e.g., showing cause and prejudice, then he still will have an available remedy in the state courts, and he can demonstrate such cause and prejudice when he seeks state post-conviction relief. If, on the other hand, petitioner cannot demonstrate a basis for overcoming the procedural default of his claims under the substantially identical state and federal standards, his claims then will be subject to dismissal with prejudice on the basis of procedural default. His claims thus are subject to dismissal either way, either without prejudice for lack of exhaustion or with

T h a t is, the Nevada state courts apply substantially the sam e cause-and-prejudice standard as is a p p lie d in federal court in determ in in g whether to excuse a procedural default. See,e.g., Mitchell v. State, 1 4 9 P.3d 33, 36 (Nev. 2006)("A petitioner can overcom e the bar to an untim e ly or successive petition by s h o w in g good cause and prejudice."); see also Robinson v. Ignacio, 360 F.3d 1044, 1052 n.3 (9th Cir. 2 0 0 4 ) ( r e c o g n iz in g that Nevada's cause-and-prejudice analysis and the federal cause-and-prejudice analysis a r e nearly identical). And the state courts apply the sam e federal standard in determ in in g whether to avoid a p r o c e d u ra l default on the basis that a fundam e n ta l m is c a r r ia g e of justice would result from failure to consider a claim because the constitutional violation has likely resulted in the conviction of a person who is actually in n o c e n t . See,e.g., Mitchell, 149 P.3d at 36 ("Even when a petitioner cannot show good cause sufficient to o v e r c o m e the bars to an untim e ly or successive petition, habeas relief m a y still be granted if the petitioner c a n dem o n s tr a te that `a constitutional violation has probably resulted in the conviction of one who is actually in n o c e n t , " citing Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).

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prejudice as procedurally defaulted. The Court will enter a without prejudice dismissal, such that this Court's order, in and of itself, will not preclude the pursuit of state relief. Petitioner further requests that his petition be stayed while he exhausts his claims. However, the entire petition is subject to immediate dismissal because none of the claims in the federal petition have been exhausted. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001). IT THEREFORE IS ORDERED that the petition for a writ of habeas corpus, as amended, shall be DISMISSED without prejudice for lack of exhaustion. The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. IT FURTHER IS ORDERED that, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the Clerk of Court shall serve a copy of this order and the final judgment upon respondents by sending same by certified mail to the Office of the Attorney General, Criminal Division, 100 North Carson St., Carson City, NV 89701-4717. No response is required from the respondents in this matter. DATED: April 2, 2009

___________________________________ EDWARD C. REED United States District Judge

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