Nuno Velasco v. Baker et al

Filing 67

ORDER denying ECF No. 51 Respondents' Motion to Dismiss; respondents will have until 04/16/2017 to answer the remaining claims in the petition, if they have not done so already; Petitioner will have 45 days from the dat e on which the answer is served to file a reply; granting nunc pro tunc as of 10/10/2016 ECF No. 63 Respondents' Motion to Extend Time. Signed by Judge Miranda M. Du on 03/02/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JUAN ALFONSO NUNO VELASCO,

Case No. 3:13-cv-00431-MMD-VPC

Petitioner,

ORDER

v.

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TIMOTHY FILSON,1 et al.,
Respondents.

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Before the Court is respondents’ motion to dismiss (ECF No. 51), which asks the

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Court to dismiss portions of petitioner Nuno Velasco’s amended petition for writ of habeas

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corpus (ECF No. 47). With their motion, respondents argued that Ground 5 of the petition

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is unexhausted and that claims in the amended petition that do not “relate back” to the

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initial petition must be dismissed as untimely. As to the latter argument, respondents

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claimed they were unable to identify the untimely claims without a certified translation of

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the initial petition from Spanish to English.

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Since the filing of the motion to dismiss, Nuno Velasco has formally abandoned

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Ground 5. (ECF No. 65.) Thus, that issue has been resolved. He has also provided a

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translation of his initial petition. (ECF No. 64.)

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1Timothy

Filson is automatically substituted for Renee Baker as the Warden of Ely
State Prison. Fed. R. Civ. P. 25(d).

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Respondents now contend that certain allegations in Ground 1 and Ground 2 of

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the amended petition do not relate back to the initial petition.2 In Mayle v. Felix, 545 U.S.

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644 (2005), the court held that an amended claim in a habeas petition relates back for

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statute of limitations purposes only if it shares a "common core of operative facts" with

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claims contained in the original petition. Id. at 663-64. The common core of operative

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facts must not be viewed at too high a level of generality, and an “occurrence,” for the

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purposes of Fed. R. Civ. P. 15(c), will consist of each separate set of facts that supports

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a ground for relief. Id. at 661.

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In Ground 1, Nuno Velasco contends that his conviction violates his constitutional

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rights because the state trial court did not allow him to withdraw his guilty plea.

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Respondents point out that the amended petition includes an allegation absent from the

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initial petition, that being, that “[p]etitioner was threatened with bodily harm if he did not

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take the deal and pleaded guilty because he feared for his own safety, and that of his

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family if he did not do so.” (ECF No. 47 at 4.)

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In Ground 2, Nuno Velasco claims that his convictions are unconstitutional

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because his counsel failed to conduct an adequate investigation prior to the entry of his

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guilty plea. Here again, respondents note that the amended petition includes additional

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allegations not included in the initial petition, those being, “that Alvaro (“Sleepy”) Romero

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had admitted to the killing [and] that Roseana Saldana-Armstrong had material evidence

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to exonerate him.” (Id. at 5.)

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With respect to both grounds, this Court concludes that the additional factual

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allegations do not prevent the respective claim from relating back to the initial petition.

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See Atwood v. Schriro, 489 F. Supp. 2d 982, 997 (D. Ariz. 2007) (citing Woodward v.

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Williams, 263 F.3d 1135, 1142 (10th Cir. 2001)). If, however, the new factual allegations

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have not been developed in state court, 28 U.S.C. § 2254(e)(2) limits a district court's

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discretion to consider new evidence unless the petitioner was diligent in attempting to

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2Nuno

Velasco does not dispute that his amended petition was filed beyond the
one-year limitation period under 28 U.S.C. § 2244(d). ECF No. 62.
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develop the facts before the state court or other exceptions apply. See Cooper-Smith v.

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Palmateer, 397 F.3d 1236, 1241 (9th Cir.2005).

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It is therefore ordered that respondents’ motion to dismiss (ECF No. 51) is denied

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as to timeliness issue and denied as moot as to petitioner’s failure to exhaust Ground 5.

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It is further ordered that the respondents will have forty-five (45) days from the date

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on which this order is entered to answer the remaining claims in the petition. To the extent

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they have not done so already, respondents must comply with Rule 5 of the Rules

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Governing Section 2254 Cases in the United States District Courts. Petitioner will have

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forty-five (45) days from the date on which the answer is served to file a reply.

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It is further ordered that respondents’ motion for extension of time (ECF No. 63) is
granted nunc pro tunc as of October 10, 2016.
DATED this 2nd day of March 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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