Rosales-Martinez v. Palmer

Filing 133

ORDER - Plaintiff may proceed with Counts I and II as they are not barred by Heck. It is further ordered that Count III is dismissed without prejudice. Signed by Judge Miranda M. Du on 8/28/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 PEDRO ROSALES-MARTINEZ, 10 Case No. 3:10-cv-00748-MMD-VPC Plaintiff, 11 v. ORDER 12 13 COLBY PALMER ,et al., Defendants. 14 15 16 I. SUMMARY 17 This action concerns a convicted felon’s Brady- and Giglio-based § 1983 claims 18 as well as his Fifth Amendment-based § 1983 claim against the City of Reno, Reno Police 19 Department, Washoe County District Attorney’s office, and a variety of individuals, many 20 of whom were associated with these three entities (collectively “Defendants”).1 After 21 granting in part and denying in part County Defendants’ motion to dismiss (ECF No. 71) 22 and City Defendants’ motion to dismiss (ECF No. 77), and denying Defendant Heidi Poe’s 23 motion for a more definite statement (ECF No. 61), the Court ordered further briefing on 24 the threshold issue of whether Plaintiff’s claims are barred under Heck v. Humphrey, 512 25 26 27 28 1In the Court’s September 21, 2015 Order (“Dismissal Order”) (ECF No. 115), the Court divided Defendants who had filed motions seeking dismissal into three groups: (1) State Defendants (state of Nevada, Aaron Hurley, K.M. Lorenzo, Jennifer Reichelt, Mark Smith, and Mark Woods); (2) Count Defendants (Washoe County and Washoe County District Attorney’s Office); and (3) City Defendants (City of Reno, Reno Police Department, Colby Palmer, and Rick Ayala). 1 U.S. 477 (1994). (ECF No. 118.) The Court has reviewed Defendant Washoe County’s 2 Opening Brief in support of Heck Bar (“Opening Brief”) (ECF No. 121), Defendant Heidi 3 Poe’s Joinder to Washoe County’s Brief (ECF No. 122), Defendants City of Reno, Rick 4 Ayala, and Colby Palmer’s (collectively, “the City of Reno”) Supplemental Brief in support 5 of their motion to dismiss (“Supplemental Brief”) (ECF No. 123), and Plaintiff’s corrected 6 Omnibus Response to Defendants’ various briefs (ECF No. 131). 7 For the reasons discussed below, the Court finds that Counts I and II of Plaintiff’s 8 First Amended Complaint (“FAC”) are not Heck-barred but that Count III is Heck-barred. 9 II. BACKGROUND 10 A thorough overview of the facts and procedural history leading up to specific 11 Defendants’ motions to dismiss and motion for more definite statement may be found in 12 the Dismissal Order. (ECF No. 115 at 2-4.)2 There, the Court stated, “The denial of these 13 previous three motions (ECF Nos. 61, 71, 77) is without prejudice to these Defendants to 14 reassert the arguments that the Court did not address after the Court resolves the 15 threshold question of whether Plaintiff’s § 1983 claims are barred under Heck v. 16 Humphrey.” (ECF No. 115 at 11.) This Court then ordered that pro bono counsel be 17 appointed for Plaintiff in order to resolve this threshold issue which may bar Plaintiff’s 18 claims. (ECF No. 116, 117.) 19 Plaintiff asserts three claims for relief. Count I alleges that Defendants violated 20 Plaintiff’s rights under Brady v. Maryland, 373 U.S. 83 (1963), by “willfully or with 21 deliberate indifference or reckless disregard for their obligations to Plaintiff under Brady” 22 suppressing evidence of Cortez’s criminal history. (ECF No. 57 at 20.) Count II alleges 23 that Defendants violated Plaintiff’s rights under Giglio v. United States, 405 U.S. 150 24 (1972), by being deliberately indifferent to or recklessly disregarding evidence that 25 Plaintiff could have been used to impeach prosecution witnesses who described Cortez 26 as a model probationer. Count III alleges that the “sentence imposed by the state court 27 Dismissal Order also dismissed the Washoe County District Attorney’s Office and the Reno Police Department as parties to this action. (ECF No. 115 at 11.) 2The 28 2 1 pursuant to [Plaintiff’s] guilty plea to the Nevada crime of unlawful giving away of a 2 controlled substance violates the constitutional guarantee against multiple punishments” 3 because the sentence of time served was unconstitutional “to the extent that the sentence 4 exceeded the 36 months that [Plaintiff] had fully served for that same crime.” (Id. at 23- 5 24.) Plaintiff specifically states in the FAC that he is not challenging his guilty plea or the 6 conviction for the crime of unlawful giving away of a controlled substance pursuant to that 7 plea or the 36 months he served for that crime. (Id. at 24.) Rather, he is challenging his 8 sentence of time served as unconstitutional to the extent it exceeds the 36-month 9 sentence originally imposed for the crime of unlawful giving away of a controlled 10 substance. (Id. at 24-25.) 11 III. DISCUSSION 12 As a preliminary matter, after the Ninth Circuit issued its opinion reversing this 13 Court’s first dismissal order (ECF No. 42), Plaintiff filed a petition for rehearing on the 14 issue of whether all four or only three of the counts in his original conviction had been 15 vacated. (ECF No. 131-4 at 4.)3 The Ninth Circuit denied Plaintiff’s petition for rehearing 16 but ordered that “[t]he issues raised in the petition may be raised before the district court 17 on remand.” (ECF No. 43 at 1; ECF No. 131-5 at 2.) A review of the record clearly shows 18 that all four counts of Plaintiff’s 2004 conviction (“first conviction”) were vacated, and 19 therefore Plaintiff’s first conviction was vacated in its entirety. 4 20 /// 21 22 23 24 25 26 27 28 3The Court takes judicial notice of documents from the state court proceedings. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001) (finding that a court may take judicial notice of matters of public record where the documents’ authenticity is not contested and the plaintiff’s complaint necessarily relies on them). 4Defendants state in their Opening Brief that only three of the four counts in the original conviction were held invalid (ECF No. 121 at 11); however, the proffered documents show that convictions on all four counts were vacated. (See ECF No. 121-5 at 2 (“This matter coming before the Court on a Writ of Habeas Corpus and Upon stipulation by Counsel for State and Counsel for Defendant to vacate the prior Judgment of Conviction.”) (emphasis added); see also ECF No. 121-2 at 2 (“Petitioner’s convictions in this case are vacated based on the cumulative errors ground as alleged in the petition”) (emphasis added); see also ECF No. 131-16 at 8 (in the post-conviction state court hearing, the judge stated that “if the court follows this stipulation, or this agreement, then all the convictions on the four counts will be vacated or taken away”).) 3 1 A. Relevant Law 2 In Heck v. Humphrey, the Supreme Court held that “in order to recover damages 3 for allegedly unconstitutional conviction or imprisonment, or for other harm caused by 4 actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 5 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 6 expunged by executive order, declared invalid by a state tribunal authorized to make such 7 determination, or called into question by a federal court’s issuance of a writ of habeas 8 corpus[.]” 512 U.S. at 486-87 (footnote omitted). However, “if the district court determines 9 that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any 10 outstanding criminal judgment against the plaintiff, the action should be allowed to 11 proceed, in the absence of some other bar to the suit.” Id. at 487 (emphasis in original 12 and footnotes omitted). 13 Brady dictates “that the suppression by the prosecution of evidence favorable to 14 an accused upon request violates due process where the evidence is material to either 15 guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 16 U.S. at 87. Evidence is considered “material” where “there is a reasonable probability 17 that, had the evidence been disclosed to the defense, the result of the proceeding would 18 have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). The rule also 19 applies to evidence “known only to police investigators and not to the prosecutor.” Kyles 20 v. Whitley, 514 U.S. 419, 438 (1995). Giglio violations are an outgrowth of Brady. In Giglio, 21 the Supreme Court found that the reliability of a given witness may be determinative of 22 an accused’s guilt or innocence; therefore, the failure to disclose evidence that may be 23 used to impeach the witness’s credibility falls within the ambit of “material evidence” under 24 Brady. See Giglio, 405 U.S. at 154. 25 The appropriate remedy for a Brady or Giglio violation is usually a new trial. US v. 26 Kohring, 637 F.3d 895, 913 (9th Cir. 2011). As a result, when a state prisoner alleges a 27 Brady or Giglio violation under § 1983, a determination by the district court that the 28 prisoner was denied his right to exculpatory or impeachment evidence and thus denied 4 1 his right to a fair trial would necessarily demonstrate the invalidity of the prisoner’s 2 conviction that resulted from those violations. See Skinner v. Switzer, 562 U.S. 521, 536- 3 37 (2011). Therefore, Heck requires that Brady- or Giglio-based § 1983 claims be brought 4 only after the conviction allegedly caused by the Brady and Giglio violations has been 5 invalidated. See Jackson v. Barnes, 749 F.3d 755, 760 (9th Cir. 2014). 6 B. Counts I and II 7 In Washoe County’s Opening Brief, they argue that Plaintiff is “challenging the 8 validity of his ongoing conviction” because his sentence of time served “evidences a 9 continuous validity to a portion of his original conviction and sentence, and an 10 inconsistency between it and a § 1983 claim.” (ECF No. 121 at 8, 11.) For the reasons 11 stated below, this argument fails on Counts I and II. 12 As an initial matter, there is no “ongoing conviction” here; rather, there are two 13 distinct convictions. Plaintiff’s first conviction on all four counts resulted from a jury verdict 14 in 2004 and was ultimately vacated in 2008 in an Amended Judgment issued by the state 15 district court. (ECF No. 121-5.) Plaintiff’s second conviction on the count of unlawful giving 16 away of a controlled substance resulted from a plea agreement with the prosecution in 17 2008. (See id. at 2.) The punishment for Plaintiff’s second conviction was a sentence of 18 time served, backdated nunc pro tunc to the prior date of judgment.5 (See id. at 2-3.) 19 Plaintiff’s first conviction was clearly held to be invalid for purposes of Heck. The 20 City of Reno asserts that because Plaintiff chose to withdraw his habeas petition and 21 22 23 24 25 26 27 28 5The City of Reno argues that because the Amended Judgment, which was issued December 2, 2008, was dated nunc pro tunc to September 28, 2004 this shows that “there are [not] two discrete events of conviction in this case,” and that the “legal effect here is that Plaintiff is deemed, from the time of his single criminal trial, to have been guilty of the one count to which he pled guilty.” (ECF No. 123 at 5.) However, the phrase nunc pro tunc was used in the Amended Judgment specifically to justify the imposition of a sentence of time served for Plaintiff’s second conviction. Without this phrase and backdate, any sentence imposed for the second conviction would require Plaintiff to be imprisoned for a term going forward from December 2, 2008. Thus, the use of nunc pro tunc merely allowed the court to impose a sentence, thereby entering judgment, on December 2, 2008 that had the same legal effect as if the sentence had been imposed and this judgment entered on September 28, 2004. See Nunc Pro Tunc, Black’s Law Dictionary (10th ed. 2014). The phrase in no way upheld the validity of the original conviction. 5 1 accept a plea agreement this suggests a continuing validity to a portion of Plaintiff’s first 2 conviction. (ECF No. 123 at 4.) The fact that the habeas petition was withdrawn is 3 irrelevant for purposes of Heck. The manner in which Plaintiff’s first conviction was 4 vacated is sufficient to meet the example of “declared invalid by a state tribunal authorized 5 to make such a determination,” 512 U.S. at 487, because the Amended Judgment clearly 6 vacated all four counts, including the count Plaintiff ultimately pled guilty to, on the basis 7 that the conviction on all four counts was the result of the “cumulative errors ground as 8 alleged in “[Plaintiff’s] petition.” (ECF No. 121-5 at 2.) 9 Moreover, for purposes of Heck, the prosecution’s intent is irrelevant when the 10 record clearly establishes that a conviction has been rendered invalid. The City of Reno 11 argues that it was the prosecution’s intent to preserve a portion of the original conviction. 12 (ECF No. 123 at 5.) Such intent is not express, nor can it be implied from the records. If 13 the parties had, in fact, intended to preserve Plaintiff’s first conviction on the count of 14 unlawful giving away of a controlled substance, the stipulated agreement and Amended 15 Judgment would have clearly stated that only three of the four counts of Plaintiff’s first 16 conviction were to be vacated. That a conviction stands is not an insignificant matter and 17 the absence of any explicit reference to a conviction remaining shows that it was vacated. 18 Moreover, it is inconsistent with Heck and common sense to agree to vacate a conviction 19 on the basis of possible or actual constitutional errors committed by the prosecution, 20 permit a plaintiff to then plead guilty to one of the original counts in lieu of being re-tried 21 and potentially convicted on all four counts (even where no Brady or Giglio violations 22 would occur in a second trial), and then argue that the first conviction the prosecution 23 agreed to vacate is somehow still valid. 24 In addition, recent case law clearly compels a finding that Counts I and II are not 25 Heck-barred because the basis of the first conviction is distinct from the basis for the 26 second conviction. For example, in Jackson v. Barnes, the plaintiff was re-tried and 27 convicted in a second trial after his first conviction was reversed on appeal. 749 F.3d at 28 758. The Ninth Circuit found that the Heck bar was inapplicable because the plaintiff was 6 1 challenging the use of evidence at his first trial that was obtained in violation of his 2 Miranda rights, and this evidence was not used in his second trial. See id. at 758, 762. 3 Here, Plaintiff is similarly challenging the prosecution’s failure to disclose evidence 4 at his first trial in violation of his rights under Brady and Giglio. Neither this evidence nor 5 the lack of disclosure was implicated or used in connection with Plaintiff’s second 6 conviction. This is because Plaintiff’s second conviction was based on the decision to 7 plead guilty to one count of unlawful giving away of a controlled substance in order to 8 avoid trial and to be immediately released from prison. 9 Equally instructive is the Second Circuit’s finding in Poventud v. City of New York, 10 750 F.3d 121 (2d. Cir. 2014), which the Jackson court relied upon. There, the plaintiff’s 11 initial conviction for attempted murder was vacated because of a Brady violation, but he 12 subsequently pled guilty to the lesser charge of attempted murder. 750 F.3d at 124-25. 13 The Second Circuit found that the plaintiff’s Brady-based § 1983 claim was not Heck- 14 barred because the plaintiff “was aware of the undisclosed exculpatory material prior to 15 his guilty plea.” Id. at 124-25. Thus, the court determined that the plaintiff’s second 16 conviction was not tainted by the Brady violation and was thus “clean,” meaning that any 17 judgment in favor of the plaintiff on his § 1983 claim would not invalidate his second 18 conviction. Id. at 136. 19 While this case is distinguishable insofar as the state district court did not explicitly 20 find a Brady or Giglio violation in vacating Plaintiff’s first conviction, Plaintiff was clearly 21 aware of the undisclosed exculpatory and impeachment evidence prior to entering into a 22 guilty plea that resulted in the second conviction.6 Plaintiff’s second conviction is similarly 23 not tainted by the alleged Brady and Giglio violations that occurred at his first trial, and 24 any judgment in favor of Plaintiff on his § 1983 claims in Counts I and II would not 25 invalidate his second conviction, as Plaintiff’s second conviction is in no way based on 26 the same alleged constitutional violations that resulted in his first conviction. See also 27 their Opening Brief, Washoe County relies on the misconception of an “ongoing conviction” to argue that Plaintiff’s case is distinguishable from Jackson, 749 F.3d 755, and Poventud, 750 F.3d 121. (ECF No. 121 at 9-12.) 28 6In 7 1 Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001) (finding that §1983 claims for supposedly 2 illegally-obtained evidence would not call into question the validity of the plaintiffs’ 3 convictions under Heck where those convictions were based on pleas of nolo contendre 4 and did not result from the use of the any illegally-obtained evidence). 5 6 Because Plaintiff’s success on the merits of his Brady or Giglio claims would not imply the invalidity of his second conviction, Heck does not bar Counts I or II. 7 C. Count III 8 Defendants argue that Plaintiff’s case is Heck-barred to the extent that Plaintiff is 9 challenging his guilty plea by challenging a portion of the period he was incarcerated. 10 (See ECF No. 121 at 13.) The Court agrees that Plaintiff may not challenge any portion 11 of his incarceration for time served or seek damages for the time served beyond the 36 12 months to which he was originally sentenced for unlawful giving away of a controlled 13 substance. 14 The sentence of 36 months was vacated when the state district court vacated 15 Plaintiff’s first conviction. (See ECF No. 121-5.) In the Amended Judgment, the court 16 signed the opinion nunc pro tunc, backdating the second conviction’s sentence to 17 September 28, 2004 (the date the original judgment was entered). Thus, Plaintiff’s 18 subsequent guilty plea to unlawful giving away of a controlled substance resulted in a 19 new sentence of time served. This sentence completely replaced the prior sentence of 36 20 months, which had been vacated when Plaintiff’s first conviction on the count of unlawful 21 giving away of a controlled substance was vacated. As a result, challenging any portion 22 of the sentence of time served, including by seeking damages for any portion of that 23 sentence,7 implicitly challenges the validity of Plaintiff’s second conviction. For these 24 reasons, Count III is barred by Heck. 25 26 27 28 7While Plaintiff may not recover any actual or compensatory damages for the time he served beyond the 36-month sentence imposed for his first conviction on the count of unlawful giving away of a controlled substance, Plaintiff’s request for punitive damages (see ECF No. 57 at 22) may be granted if he prevails on the merits of his Brady- and/or Giglio-based § 1983 claims and if other required factors are met. See Jackson, 749 F.3d at 762 (the Ninth Circuit found that the plaintiff could still be entitled to punitive or nominal damages if he prevailed on the merits of his Miranda-based §1983 claim). 8 1 IV. CONCLUSION 2 The Court notes that the parties made several arguments and cited to several 3 cases not discussed above. The Court has reviewed these arguments and cases and 4 determines that they do not warrant discussion as they do not affect the outcome of the 5 Court’s decision. 6 7 8 It is therefore ordered that Plaintiff may proceed with Counts I and II as they are not barred by Heck. It is further ordered that Count III be dismissed without prejudice. DATED THIS 28th day of August 2017. 9 10 11 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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