Chavez v. LaGrand et al

Filing 46

ORDER denying 26 Motion to Dismiss; directing petitioner to show why Ground 2 should not be dismissed as procedurally barred within 20 days; and granting nunc pro tunc 43 and 44 Motions to Extend Time. Signed by Judge Miranda M. Du on 9/22/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES CHAVEZ,

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Petitioner,
v.

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Case No. 3:13-cv-00548-MMD-WGC

ORDER
LeGRAND, WARDEN, et al.,

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Respondents.

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This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by James

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Chavez. On September 14, 2014, respondents filed a motion to dismiss arguing that

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Ground 2 of Chavez’s petition is unexhausted.1 (Dkt. no. 26.) Having been fully briefed,

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the motion is now before the Court for decision.

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I.

BACKGROUND2

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In November 2006, a jury in the Second Judicial District Court for Nevada found

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Chavez guilty of four counts of sexual assault on a child. The state district court

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sentenced him to four consecutive terms of life in prison with minimum parole eligibility

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after twenty years on each count. Chavez appealed.

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On direct appeal, Chavez raised claims asserting violations of the Confrontation

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Clause of the Sixth Amendment, violations of Nevada’s rules of evidence, a claim of

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Respondents also argued that the petition is not properly verified, however, that
issue was resolved by the subsequent filing of a proper verification. (Dkt. no. 30.)
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Unless otherwise noted, the background information for this case was taken
from the exhibits filed at docket numbers 16 through 21.

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juror misconduct, and a violation of the Eighth Amendment’s prohibition against cruel

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and unusual punishment. The Nevada Supreme Court affirmed Chavez’s conviction and

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sentence.

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Chavez subsequently filed a proper person petition for writ of habeas corpus.

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After appointment of counsel, Chavez filed a supplemental petition. The state court held

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an evidentiary hearing, and then entered an order denying the state petition. Chavez

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appealed.

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On appeal, Chavez raised various claims of ineffective assistance of counsel,

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and asserted a claim of cumulative error. The Nevada Supreme Court affirmed the state

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district court’s order denying the state petition.

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On October 2, 2013, this Court received a federal habeas petition from Chavez

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initiating this proceeding. On December 23, 2013, Chavez filed the amended petition

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(dkt. no. 22) that is the subject of respondents’ motion to dismiss.

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II.

EXHAUSTION

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A federal court will not grant a state prisoner's petition for habeas relief until the

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prisoner has exhausted his available state remedies for all claims raised. Rose v.

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Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). To exhaust a ground for relief, a

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petitioner must fairly present that ground for relief to the state’s highest court, and must

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give that court the opportunity to address and resolve it. Duncan v. Henry, 513 U.S.

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364, 365 (1995); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). The “fair

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presentation” requirement is satisfied when the claim has been presented to the highest

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state court by describing the operative facts and the legal theory upon which the federal

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claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982); Batchelor v. Cupp, 693 F.2d

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859, 862 (9th Cir. 1982).

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To fairly present a federal claim to the state court, the petitioner must alert the

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court to the fact that he asserts a claim under the United States Constitution. Hiivala v.

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Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Duncan, 513 U.S. at 365-66). The

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mere similarity of claims of state and federal error is insufficient to establish exhaustion.
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Hiivala, 195 F.3d at 1106, (citing Duncan, 513 U.S. at 366); see also Lyons v. Crawford,

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232 F.3d 666, 668-69 (9th Cir. 2000), as modified by, 247 F.3d 904 (9th Cir. 2001);

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Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000). The petitioner must have

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"characterized the claims he raised in state proceedings specifically as federal claims.”

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Lyons, 232 F.3d at 670. This is accomplished either by referencing a specific provisions

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of the federal constitution or by citing to either a federal or state case involving the legal

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standard for a federal constitutional violation. Id.; Peterson v. Lampert, 319 F.3d 1153,

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1158 (9th Cir. 2003) (en banc). “[G]eneral appeals to broad constitutional principles,

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such as due process, equal protection, and the right to a fair trial, are insufficient to

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establish exhaustion.” Hiivala, 195 F.3d at 1106, (citing Gray v. Netherland, 518 U.S.

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152, 162-63 (1996); see also Shumway, 223 F.3d at 987.

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In Ground 2 of his petition, Chavez alleges that juror misconduct and erroneous

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evidentiary rulings were so pervasive in his trial that they resulted in a violation of his

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constitutional right to due process. The two primary errors Chavez identifies in Ground 2

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are (1) the admission of evidence regarding the victim’s death and (2) juror disregard for

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the court’s instructions not to deliberate on guilt prior to the completion of the case.

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Respondents argue that Ground 2 is unexhausted because Chavez failed to

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present these issues to the state court as federal claims for relief. With respect to

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erroneous evidentiary rulings, respondents point to Chavez’s brief on direct appeal, in

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which Chavez argued that the trial court erred by: (1) instructing the jury that the victim

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was deceased, rather than informing the jury that she was merely unavailable for the

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purposes of NRS § 51.055; (2) not granting a mistrial after testimony from the victim’s

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brother suggesting that Chavez was to blame for the victim’s death even though the

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court earlier ruled that the circumstances of the death were not to be disclosed to the

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jury; and (3) admitting autopsy photos of the victim into evidence in violation of NRS §

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48.035(2). (Dkt. no. 19-7 at 34-38, 42-43.) In making these arguments, Chavez made

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no specific reference to federal law. Likewise, respondents note that Chavez’s argument

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on direct appeal regarding juror misconduct relied entirely on state case law. (Id. at 38-

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39.)

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Chavez concedes that his opening brief on direct appeal “is bereft of adequate

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citation to the United States Constitution or federal precedent.” (Dkt. no. 31 at 3.) Even

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so, he argues that this Court’s focus at this point should be on the likelihood that the

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Nevada courts will consider the merits of the claim if he were to return to state court.

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According to Chavez, the near certainty that the state court will apply state procedural

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defaults to the claim requires this Court to find Ground 2 technically exhausted, but

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subject to procedural default.

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Alternatively, Chavez argues that Ground 2 was exhausted by methods other

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than specific reference to the federal constitution or citation to a case involving the legal

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standard for a federal constitutional violation. In this regard, he claims that factual

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allegations contained in his direct appeal arguments combined with his ineffective

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assistance of counsel and cumulative error claims in his state post-conviction

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proceeding adequately apprised the Nevada Supreme Court of the federal nature of the

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claim. He further argues that the Nevada Supreme Court applied federal law to his

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allegations that the trial court erred by informing the jury that the victim was deceased

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and by admitting the autopsy photos into evidence, thereby effectuating exhaustion of

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those portions of the claim. Lastly, he contends that the Nevada Supreme Court’s

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reliance on a Nevada case, Valdez v. State, 196 P.3d 465 (Nev. 2008), to deny his juror

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misconduct claim was sufficient to exhaust that portion of Ground 2 because the court in

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that case found a constitutional violation arising from juror misconduct.

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None of these alternative arguments is convincing. Exhaustion requires the

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presentation of the claim as a cohesive whole. See Baldwin v. Reese, 541 U.S. 27, 32

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(2004) (“We consequently hold that ordinarily a state prisoner does not “fairly present” a

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claim to a state court if that court must read beyond a petition or a brief (or a similar

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document) that does not alert it to the presence of a federal claim in order to find

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material, such as a lower court opinion in the case, that does so.”).
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The citation to federal law that Chavez relies upon to assert the exhaustion of

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part of Ground 2 is a citation to a holding in a federal criminal case (U.S. v. Acceturro,

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966 F.2d 631, 637 (11th Cir. 1992)) involving the court’s review of alleged trial court

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error. See Chavez v. State, 213 P.3d 476, 488 n.5 (Nev. 2009). It was not a citation that

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addressed the legal standard for a federal constitutional violation. Likewise, the Nevada

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Supreme Court did not specify that it was relying upon Valdez for its application of

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federal law, as opposed to state law. Id. at 489. Thus, the citation to Valdez did not

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effect exhaustion. See Casey v. Moore, 386 F.3d 896, 912 (9th Cir. 2004) (“Casey's

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citing to a state case discussing both state and federal claims, with no textual mention

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of a federal claim in Casey's brief on this issue, did not fairly present to the state court of

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appeals the federal claim now asserted in federal habeas proceedings.”).
With regard to applying the procedural default doctrine to Ground 2, the Supreme

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Court has stated as follows:

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[I]f state-court remedies are no longer available because the prisoner
failed to comply with the deadline for seeking state-court review or for
taking an appeal, those remedies are technically exhausted, . . . but
exhaustion in this sense does not automatically entitle the habeas
petitioner to litigate his or her claims in federal court. Instead, if the
petitioner procedurally defaulted those claims, the prisoner generally is
barred from asserting those claims in a federal habeas proceeding.

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Woodford v. Ngo, 548 U.S. 81, 93 (2006) (citing Coleman v. Thompson, 501 U.S. 722,

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744-51 (1991) and Gray, 518 U.S. at 162). As Chavez points out, the Nevada courts are

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almost certain to apply a timeliness bar and/or a successive petition bar to any

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forthcoming attempt to present Ground 2. See NRS §§ 34.726 and 34.810. It is well

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established that these bars are adequate and independent state law grounds that serve

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to bar federal court review of claims to which they are applied, unless petitioner can

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demonstrate cause and prejudice to excuse the default. See Moran v. McDaniel, 80

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F.3d 1261, 1268-70 (9th Cir.1996); Valerio v. Crawford, 306 F.3d 742, 778 (9th Cir.

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2002); Ybarra v. McDaniel, 656 F.3d 984, 990 (9th Cir. 2011); Loveland v. Hatcher, 231

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F.3d 640, 643 (9th Cir. 2000). And, while he does not explicitly state that there is no

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chance that the Nevada court will excuse the defaults,3 Chavez’s insistence that this

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Court find the claim procedurally defaulted for the purposes federal review stands as a

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concession that he is not able to make the showing necessary to obtain a hearing in

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state court on the merits of Ground 2. Thus, Ground 2 is technically exhausted, but

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procedurally defaulted.

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The question then becomes whether Chavez can show cause and prejudice

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sufficient to permit this Court to excuse the procedural defaults. See Wainwright v.

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Sykes, 433 U.S. 72, 87 (1977). That is, he must show that some “objective factor

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external to the defense” impeded his attempts to comply with the state procedural rule.

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Murray v. Carrier, 477 U.S. 478, 488 (1986). Further, this objective impediment must

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have actually prevented him from raising the claim. McCleskey v. Zant, 499 U.S. 467,

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497 (1991). If he can establish cause, Chavez must then show "prejudice;" i.e., that

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there was actual prejudice amounting to a substantial disadvantage, and which resulted

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in a trial infected with constitutional error. United States v. Frady, 456 U.S. 152, 170

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(1982).

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In his sur-reply to the motion to dismiss, Chavez submits that the issue of cause

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and prejudice is to be litigated if and when this Court decides that the procedural default

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analysis applies to Ground 2. Even so, he proffers what he terms as “one possible angle

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for demonstrating cause and prejudice.” (Dkt. no. 36 at 6.) Specifically, he argues that

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Martinez v. Ryan, 132 S.Ct. 1308 (2012), provides him a viable claim of cause and

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prejudice.

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In Martinez, the Supreme Court held that, in collateral proceedings that provide

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the first occasion to raise a claim of ineffective assistance at trial, ineffective assistance

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of post-conviction counsel in that proceeding may establish cause for a prisoner's

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procedural default of such a claim. Martinez, 132 S. Ct. at 1315. The Court stressed that

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its holding was a “narrow exception” to the rule in Coleman that “an attorney's ignorance

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He does note, however, that the “universe of Nevada grounds for cause to
excuse a procedural default are quite limited.” (Dkt. no. 31 at 8 n. 5.)
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or inadvertence in a postconviction proceeding does not qualify as cause to excuse a

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procedural default.” Id.

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In Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), the Ninth Circuit

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expanded Martinez to allow ineffective assistance of post-conviction counsel to be used

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as a means to excuse the default of claims of ineffective assistance of appellate

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counsel. Nguyen, 736 F.3d at 1295. Then, in Dickens v. Ryan, 740 F.3d 1320 (9th Cir.

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2014), the court indicated in a footnote that, unlike a claim of ineffective assistance of

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appellate counsel as cause for failing to bring a claim on direct appeal, a claim of

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ineffective assistance of PCR counsel as cause for failing to assert a claim of ineffective

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assistance of trial counsel need not be first exhausted. Dickens, 740 F.3d at 1322, n.17.

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Chavez suggests that, read together, these cases allow him to assert ineffective

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assistance of direct appeal counsel as “cause to allow this Court to hear the substance

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of [Ground 2] despite Chavez’s anticipatory default of that claim.” (Dkt. no. 36 at 9.) This

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Court does not agree. The Supreme Court precedent remains that a claim of ineffective

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assistance of counsel showing “cause” is itself subject to the exhaustion requirements.

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Murray, 477 U.S. at 492; Edwards v. Carpenter, 529 U .S. 446 (2000). Because it is not

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disputed that Chavez has not exhausted any claim that appellate counsel was

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ineffective by not presenting Ground 2 to the state court, such a claim cannot serve as

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cause in this Court to excuse the default of Ground 2.

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As general matter, this Court is not inclined to extend the limits of Martinez

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without clear direction from a higher court. See Hunton v. Sinclair, 732 F.3d 1124,

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1126–27 (9th Cir. 2013) (declining to extend Martinez to underlying Brady claims), cert.

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denied, 134 S.Ct. 1771 (2014); see also Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th

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Cir. 2015) (declining to extend Martinez to cover claims other than ineffective assistance

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of trial or appellate counsel). Nonetheless, Chavez will be allowed an opportunity to

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present argument on the issue of whether his procedural default of Ground 2 should be

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excused. Because he has already been provided at least one opportunity to raise such

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argument, the time permitted will be limited.
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It is therefore ordered that respondents’ motion to dismiss for lack of exhaustion
(dkt. no. 26) is denied.

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It is further ordered that petitioner will have twenty (20) days from the date this

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order is entered within which to show why, in light of the discussion above, Ground 2

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should not be dismissed as procedurally barred. Respondents will thereafter have

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twenty (20) days to file a response. The matter will, at that point, be deemed submitted

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to the Court for decision.

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It is further ordered that respondents’ motions to extend time (dkt. nos. 43 and
44) are granted nunc pro tunc as of the date of their respective filing.
DATED THIS 22nd day of September 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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