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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FERNANDO NAVARRO HERNANDEZ,

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Petitioner,

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vs.

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TIMOTHY FILSON, et al.,

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3:09-cv-00545-LRH-WGC

Respondents.

ORDER

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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.

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On March 6, 2017, with leave of court, Hernandez filed a fourth amended petition for writ of

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habeas corpus (ECF No. 147), adding to his petition two claims based on Hurst v. Florida, 136 S.Ct.

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616 (2016). In his motion for stay, filed on February 15, 2017 (ECF No. 145), Hernandez requests

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that this action be stayed while he exhausts those claims in state court. Respondents filed an

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opposition to the motion for stay on March 27, 2017 (ECF No. 148), and Hernandez filed a reply on

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April 26, 2017 (ECF No. 149). The motion for stay will be denied.

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In Rhines v. Weber, 544 U.S. 269 (2005), the stay and abeyance procedure was condoned by

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the Supreme Court as a means by which a habeas petitioner with a mixed petition subject to

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dismissal under Rose v. Lundy, 455 U.S. 509 (1982), could fully exhaust his petition without the risk

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of running afoul of the one-year statutory time limit for filing federal petitions. See Rhines, 544 U.S.

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at 276. The Rhines Court cautioned, however, that stay and abeyance, if too frequently used, would

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undermine AEDPA’s goals of prompt resolution of claims and deference to state court rulings. Id.

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The Court held that, in order to obtain “stay and abeyance,” a petitioner must show: (1) good cause

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for the failure to exhaust claims in state court, (2) that the unexhausted claims are potentially

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meritorious, and (3) the absence of abusive tactics or intentional delay. Id.; see also Jackson v. Roe,

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425 F.3d 654, 662 (9th Cir. 2005).
In his two claims based on Hurst, Hernandez asserts that his federal constitutional rights were

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violated because the trial court failed to instruct the jury that, to impose the death penalty, it had to

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find beyond a reasonable doubt that there were insufficient mitigating circumstances to outweigh the

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aggravating circumstances, and because, on the appeal in his first state habeas action, the Nevada

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Supreme Court, after striking an invalid aggravating circumstance, re-weighed the remaining

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aggravating circumstances and the mitigating circumstances, and affirmed the district court’s denial

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of relief with respect to his death penalty. See Motion for Stay (ECF No. 145), pp. 3, 7-8; see also

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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

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that basis, denies his motion for a stay.
In Hurst, the Court held that Florida’s capital sentencing scheme violated the Sixth

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Amendment right to a jury trial because, under the scheme, the jury rendered an advisory verdict but

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the judge ultimately found the facts necessary to impose a sentence of death. See Hurst, 136 S.Ct. at

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624. In reaching that holding, the Court relied upon Ring v. Arizona, 536 U.S. 584 (2002), which

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held that any fact necessary for the imposition of the death penalty must be found by a jury, not a

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judge. See Ring, 536 U.S. at 589. Ring and Hurst are both based on Apprendi v. New Jersey, 530

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U.S. 466 (200), which held that any fact that “expose[s] the defendant to a greater punishment than

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that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury.

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Apprendi, 530 U.S. at 494.

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Hernandez claims that his death sentence is unconstitutional under Hurst because the jury

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was not instructed that it had to find beyond a reasonable doubt that there were no mitigating

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circumstances sufficient to outweigh the aggravating circumstances. In his other claim based on

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Hurst, Hernandez claims that his death sentence is unconstitutional because, on the appeal in his first

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state habeas action, the Nevada Supreme Court struck one aggravating circumstance and re-weighed

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the remaining aggravating circumstances and mitigating circumstances. Hernandez reasons that,

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under Hurst, the weighing of aggravating and mitigating factors is an “element” that must be

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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

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nor Hurst holds that the weighing of aggravating and mitigating circumstances is an “element” that

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must be submitted to the jury, or to which the reasonable doubt standard must apply. The Court in

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Ring noted that “[t]he State’s law authorizes the judge to sentence the defendant to death only if

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there is at least one aggravating circumstance and ‘there are no mitigating circumstances sufficiently

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substantial to call for leniency.’” Ring, 536 U.S. at 593. Yet, the Court identified only the existence

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of an aggravating circumstance as an “element” that must be found by a jury to impose the death

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penalty. Ring, 536 U.S. at 609.
The Court in Hurst concluded that Florida’s capital sentencing scheme was unconstitutional

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because it “required the judge alone to find the existence of an aggravating circumstance.” Hurst,

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136 S.Ct. at 624. The import of Hurst is its holding that the jury’s advisory role under Florida law

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fell short of complying with the Sixth Amendment requirement of Apprendi and Ring. It did not

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break new ground with respect to what determinations qualify as an “element” that must be

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submitted to a jury and to which the reasonable doubt standard must be applied. Because neither

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Ring nor Hurst classifies the weighing of aggravating and mitigating circumstances as an element

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that must be determined by a jury applying the reasonable doubt standard, Hernandez has no support

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for his Hurst claims.

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Furthermore, even assuming, for purposes of analysis, that the Supreme Court’s holding in

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Hurst represents a new rule supporting Castillo’s claim -- this Court finds that it does not -- the

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Ninth Circuit Court of Appeals recently held that any such new rule drawn from Hurst would not

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apply retroactively to cases on collateral review, such as Castillo’s. See Ybarra v. Filson, ___ F.3d

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___, 2017 WL 3811118, pp. 11-14 (9th Cir., September 1, 2017). In Ybarra, the court of appeals

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assumed for the sake of argument, as this Court does, that Hurst “creates a new rule,” “establishes

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that the ‘weighing determination’ is an element,” and “renders the Nevada sentencing scheme

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unconstitutional,” but held that, “[n]evertheless, even after making these generous assumptions, [the

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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

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stay of this action to allow for state-court exhaustion of the claims is unwarranted.

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IT IS THEREFORE ORDERED that petitioner’s Motion for Stay and Abeyance (ECF No.
145) is DENIED.

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IT IS FURTHER ORDERED that respondents shall, within 45 days from the entry of this

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order, file an answer or other response to petitioner’s fourth amended petition for writ of habeas

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corpus.

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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.

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DATED this 11th day of September, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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