Hernandez v. MCDANIEL et al

Filing 158

AMENDED ORDER (re ECF No. 150 ) - Petitioner's Motion for Stay and Abeyance (ECF No. 145 ) is DENIED. FURTHER ORDERED that respondents shall file an answer or other response to petitioner's fourth amended petition for writ of habeas corpus within the time specified in the order entered October 26, 2017 (ECF No. 157 ). FURTHER ORDERED that, in all other respects, the schedule for further proceedings set forth in the order entered on February 20, 2015 (ECF N o. 94 ) shall remain in effect. FURTHER ORDERED that this amended order is filed, replacing the order entered September 11, 2017 (ECF No. 150 ), to correct errors (regarding the petitioner's name, and regarding the number of claim s based on Hurst the petitioner asserts) at p. 4, lines 2 and 4. The Clerk of the Court is directed to restrict the original version of this order (ECF No. 150 ). Signed by Judge Larry R. Hicks on 10/31/2017. (Copies have been distributed pursuant to the NEF - DRM)

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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.

AMENDED 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 Hernandez’s claims -- 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 Hernandez’s. See Ybarra v. Filson, ___

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F.3d ___, 2017 WL 3811118, pp. 11-14 (9th Cir., September 1, 2017). In Ybarra, the court of

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

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

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

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assumptions, [the petitioner] cannot obtain relief under Hurst.” Id. at 12.

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Because Hernandez’s claims based on Hurst have no potential for success on their merits, a
stay of this action to allow for state-court exhaustion of the claims is unwarranted.
IT IS THEREFORE ORDERED that petitioner’s Motion for Stay and Abeyance (ECF No.
145) is DENIED.
IT IS FURTHER ORDERED that respondents shall file an answer or other response to

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petitioner’s fourth amended petition for writ of habeas corpus within the time specified in the order

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entered October 26, 2017 (ECF No. 157).

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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.
IT IS FURTHER ORDERED that this amended order is filed, replacing the order entered

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September 11, 2017 (ECF No. 150), to correct errors (regarding the petitioner’s name, and regarding

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the number of claims based on Hurst the petitioner asserts) at p. 4, lines 2 and 4. The Clerk of the

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Court is directed to restrict the original version of this order (ECF No. 150).

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DATED this 31st day of October, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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