Hernandez v. MCDANIEL et al

Filing 150

ORDER denying Petitioner's ECF No. 145 Motion for Stay and Abeyance; directing Respondents within 45 days to file answer or other response to ECF No. 147 Fourth Amended Petition. Signed by Judge Larry R. Hicks on 9/11/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 FERNANDO NAVARRO HERNANDEZ, 10 Petitioner, 11 vs. 12 TIMOTHY FILSON, et al., 13 3:09-cv-00545-LRH-WGC Respondents. ORDER 14 15 16 / In this capital habeas corpus action, there is, before the Court, a motion for stay (ECF No. 145) filed by the petitioner, Fernando Navarro Hernandez. 17 On March 6, 2017, with leave of court, Hernandez filed a fourth amended petition for writ of 18 habeas corpus (ECF No. 147), adding to his petition two claims based on Hurst v. Florida, 136 S.Ct. 19 616 (2016). In his motion for stay, filed on February 15, 2017 (ECF No. 145), Hernandez requests 20 that this action be stayed while he exhausts those claims in state court. Respondents filed an 21 opposition to the motion for stay on March 27, 2017 (ECF No. 148), and Hernandez filed a reply on 22 April 26, 2017 (ECF No. 149). The motion for stay will be denied. 23 In Rhines v. Weber, 544 U.S. 269 (2005), the stay and abeyance procedure was condoned by 24 the Supreme Court as a means by which a habeas petitioner with a mixed petition subject to 25 dismissal under Rose v. Lundy, 455 U.S. 509 (1982), could fully exhaust his petition without the risk 26 of running afoul of the one-year statutory time limit for filing federal petitions. See Rhines, 544 U.S. 1 at 276. The Rhines Court cautioned, however, that stay and abeyance, if too frequently used, would 2 undermine AEDPA’s goals of prompt resolution of claims and deference to state court rulings. Id. 3 The Court held that, in order to obtain “stay and abeyance,” a petitioner must show: (1) good cause 4 for the failure to exhaust claims in state court, (2) that the unexhausted claims are potentially 5 meritorious, and (3) the absence of abusive tactics or intentional delay. Id.; see also Jackson v. Roe, 6 425 F.3d 654, 662 (9th Cir. 2005). In his two claims based on Hurst, Hernandez asserts that his federal constitutional rights were 7 8 violated because the trial court failed to instruct the jury that, to impose the death penalty, it had to 9 find beyond a reasonable doubt that there were insufficient mitigating circumstances to outweigh the 10 aggravating circumstances, and because, on the appeal in his first state habeas action, the Nevada 11 Supreme Court, after striking an invalid aggravating circumstance, re-weighed the remaining 12 aggravating circumstances and the mitigating circumstances, and affirmed the district court’s denial 13 of relief with respect to his death penalty. See Motion for Stay (ECF No. 145), pp. 3, 7-8; see also 14 Fourth Amended Petition for Writ of Habeas Corpus (ECF No. 147), pp. 223-29. This Court concludes that Hernandez’s Hurst claims are not potentially meritorious and, on 15 16 that basis, denies his motion for a stay. In Hurst, the Court held that Florida’s capital sentencing scheme violated the Sixth 17 18 Amendment right to a jury trial because, under the scheme, the jury rendered an advisory verdict but 19 the judge ultimately found the facts necessary to impose a sentence of death. See Hurst, 136 S.Ct. at 20 624. In reaching that holding, the Court relied upon Ring v. Arizona, 536 U.S. 584 (2002), which 21 held that any fact necessary for the imposition of the death penalty must be found by a jury, not a 22 judge. See Ring, 536 U.S. at 589. Ring and Hurst are both based on Apprendi v. New Jersey, 530 23 U.S. 466 (200), which held that any fact that “expose[s] the defendant to a greater punishment than 24 that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. 25 Apprendi, 530 U.S. at 494. 26 /// 2 Hernandez claims that his death sentence is unconstitutional under Hurst because the jury 1 2 was not instructed that it had to find beyond a reasonable doubt that there were no mitigating 3 circumstances sufficient to outweigh the aggravating circumstances. In his other claim based on 4 Hurst, Hernandez claims that his death sentence is unconstitutional because, on the appeal in his first 5 state habeas action, the Nevada Supreme Court struck one aggravating circumstance and re-weighed 6 the remaining aggravating circumstances and mitigating circumstances. Hernandez reasons that, 7 under Hurst, the weighing of aggravating and mitigating factors is an “element” that must be 8 submitted to the jury, and to which the reasonable doubt standard must be applied. Hernandez’s claims extend the holding in Hurst beyond its cognizable bounds. Neither Ring 9 10 nor Hurst holds that the weighing of aggravating and mitigating circumstances is an “element” that 11 must be submitted to the jury, or to which the reasonable doubt standard must apply. The Court in 12 Ring noted that “[t]he State’s law authorizes the judge to sentence the defendant to death only if 13 there is at least one aggravating circumstance and ‘there are no mitigating circumstances sufficiently 14 substantial to call for leniency.’” Ring, 536 U.S. at 593. Yet, the Court identified only the existence 15 of an aggravating circumstance as an “element” that must be found by a jury to impose the death 16 penalty. Ring, 536 U.S. at 609. The Court in Hurst concluded that Florida’s capital sentencing scheme was unconstitutional 17 18 because it “required the judge alone to find the existence of an aggravating circumstance.” Hurst, 19 136 S.Ct. at 624. The import of Hurst is its holding that the jury’s advisory role under Florida law 20 fell short of complying with the Sixth Amendment requirement of Apprendi and Ring. It did not 21 break new ground with respect to what determinations qualify as an “element” that must be 22 submitted to a jury and to which the reasonable doubt standard must be applied. Because neither 23 Ring nor Hurst classifies the weighing of aggravating and mitigating circumstances as an element 24 that must be determined by a jury applying the reasonable doubt standard, Hernandez has no support 25 for his Hurst claims. 26 /// 3 1 Furthermore, even assuming, for purposes of analysis, that the Supreme Court’s holding in 2 Hurst represents a new rule supporting Castillo’s claim -- this Court finds that it does not -- the 3 Ninth Circuit Court of Appeals recently held that any such new rule drawn from Hurst would not 4 apply retroactively to cases on collateral review, such as Castillo’s. See Ybarra v. Filson, ___ F.3d 5 ___, 2017 WL 3811118, pp. 11-14 (9th Cir., September 1, 2017). In Ybarra, the court of appeals 6 assumed for the sake of argument, as this Court does, that Hurst “creates a new rule,” “establishes 7 that the ‘weighing determination’ is an element,” and “renders the Nevada sentencing scheme 8 unconstitutional,” but held that, “[n]evertheless, even after making these generous assumptions, [the 9 petitioner] cannot obtain relief under Hurst.” Id. at 12. Because Hernandez’s claims based on Hurst have no potential for success on their merits, a 10 11 stay of this action to allow for state-court exhaustion of the claims is unwarranted. 12 13 IT IS THEREFORE ORDERED that petitioner’s Motion for Stay and Abeyance (ECF No. 145) is DENIED. 14 IT IS FURTHER ORDERED that respondents shall, within 45 days from the entry of this 15 order, file an answer or other response to petitioner’s fourth amended petition for writ of habeas 16 corpus. 17 18 IT IS FURTHER ORDERED that, in all other respects, the schedule for further proceedings set forth in the order entered on February 20, 2015 (ECF No. 94) shall remain in effect. 19 20 DATED this 11th day of September, 2017. 21 22 LARRY R. HICKS UNITED STATES DISTRICT JUDGE 23 24 25 26 4

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