Aytch v. LeGrand et al

Filing 24

ORDERED that Rs shall have until 8/6/2012 to file a motion to dismiss limited to issues of cognizability and lack of exhaustion. FURTHER ORD P shall have 30 days from service to file an opposition to the motion to dismiss. FURTHER ORD P's # 23 Motion for a scheduling order isGRANTED as per the provisions herein. Signed by Chief Judge Robert C. Jones on 6/7/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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MARTINEZ S. AYTCH,

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Petitioner,

3:10-cv-00767-RCJ-WGC

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vs.

ORDER

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ROBERT LEGRAND, et al.

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Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review

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of the counseled amended petition under Rule 4 of the Rules Governing Section 2254 Cases

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as well as on petitioner’s motion (#23) for a scheduling order.

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Following initial review, it appears that substantial issues are presented as to whether

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Ground 6 of the petition is cognizable in federal habeas corpus as well as whether Ground

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6 and a number of additional claims are exhausted.

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In Ground 6, petitioner alleges that he was denied an alleged right under the Due

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Process Clause to assistance of counsel during the state post-conviction proceedings to raise

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claims of ineffective assistance of trial counsel. This claim was asserted in anticipation of the

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ruling in a number of then-pending cases in the United States Supreme Court, including

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Martinez v. Ryan, 132 S.Ct. 1309 (2012). In Martinez, the Supreme Court held that the

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absence or inadequate assistance of counsel in initial-review state collateral proceedings may

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establish cause for a petitioner's procedural default of a claim of ineffective assistance of trial

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counsel. However, a holding that, in limited circumstances, a petitioner may rely upon the

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absence of or alleged inadequate assistance of initial-review state post-conviction counsel

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to establish cause for a procedural default is not the equivalent of a holding that a petitioner

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has a freestanding right to counsel in state post-conviction proceedings enforceable in federal

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habeas corpus. The Supreme Court expressly eschewed holding that such a freestanding

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right existed, 132 S.Ct. at 1319.

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Moreover, there is a fundamental jurisdictional issue with regard to a federal district

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court reviewing a state court proceeding for constitutional error over and above collateral

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review of a judgment of conviction. Congress gave the federal district courts jurisdiction in

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28 U.S.C. § 2254(a) to entertain a petition for a writ of habeas corpus to challenge custody

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pursuant to a judgment of a state court. It is the state court judgment of conviction by which

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a petitioner is held in custody. Otherwise, a federal district court has no jurisdiction to sit in

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the role of an appellate court reviewing other state court judgments for error. See,e.g.,

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Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); Bianchi v.

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Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003); see generally Comment, Federal Injunctive

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Relief Against Pending State Civil Proceedings: Younger Days Are Here Again, 44 La.L.Rev.

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967, 986-87 (1984). It thus has been long-established law that alleged errors in state post-

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conviction review proceedings are not cognizable in federal habeas corpus. See,e.g.,

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Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989).

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Further, even if such a claim, arguendo, were cognizable in federal habeas corpus, the

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Court can see no principled reason at this juncture why such a claim would not be subject to

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the same exhaustion requirement as all other federal habeas claims presented pursuant to

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§ 2254.

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Additionally, there appears to be a substantial question following initial review as to
whether the following claims are exhausted or fully exhausted:

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(a)

Ground 2(b);

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(b)

Ground 2(c) to the extent based upon a different factual basis from the

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claim exhausted in the state courts, including allegations as to the co-

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defendant’s criminal history or lack thereof and alleged mental illness;
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(c)

Ground 2(g), as it pertains to the cross-examination of the victim

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regarding the value of the stolen items as opposed to pretrial discovery

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and investigation regarding same;

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(d)

Ground 2(h)(ii) as a claim based upon a legal theory of ineffective

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assistance of trial counsel as opposed to ineffective assistance of

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appellate counsel;

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(e)

Ground 2(h)(iii) to the extent based upon trial counsel’s failure to

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challenge the substance, i.e., of the appropriateness, of the convictions

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as a basis for a habitual criminal adjudication other than two Wisconsin

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convictions in 1985 and 1986, as the state court claim otherwise

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challenged trial counsel’s failure to object to the admissibility of the other

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convictions, not to challenge their substance or appropriateness;

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(f)

and

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Grounds 3 and 4 as independent substantive claims of trial court error;

(g)

Ground 7, as a claim of cumulative error including the claims raised on

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state post-conviction review, as the only exhausted claim of cumulative

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error was presented on direct appeal.

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The Court concludes that the most efficient manner of proceeding at this juncture

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would be to resolve the cognizability and exhaustion issues, including such related issues as

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additionally are raised by respondents, prior to addressing other issues in the case.

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IT THEREFORE IS ORDERED that respondents shall have sixty (60) days from entry

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of this order within which to file a motion to dismiss limited to issues of cognizability and lack

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of exhaustion. All other issues in the case, including other procedural defenses, are deferred

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at this time. The failure to present other defenses in the initial motion to dismiss filed in

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response to this order shall not provide a basis for waiver of defenses, as the Court expressly

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is limiting the response to only issues of cognizability and exhaustion.

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IT FURTHER IS ORDERED that petitioner shall have thirty (30) days from service to
file an opposition to the motion to dismiss.
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IT FURTHER IS ORDERED that petitioner’s motion (#23) for a scheduling order is
GRANTED as per the provisions herein.1
DATED: June 7, 2012.

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_________________________________
ROBERT C. JONES
Chief United States District Judge

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Counsel m ay wish to note that Local Rule LR 7-6(b) provides the appropriate rule – and procedure –
in this Court with regard to m atters under subm ission. Counsel need not attem pt to rely upon Ninth Circuit
rules by analogy, either for authority or for the procedure to follow.

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The Court endeavors to m ove m atters as prom ptly as possible, but, sim ilar to counsel, also is tasked
with applying lim ited resources to a heavy docket.

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