Chavez v. LaGrand et al

Filing 50

ORDER - Ground 2 is dismissed as procedurally barred. Answer to petitioner's remaining grounds due by 5/26/2016. Reply due 30 days following service of answer. Signed by Judge Miranda M. Du on 4/26/2016. (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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***

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JAMES CHAVEZ,

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Petitioner,

ORDER

v.

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

LeGRAND, WARDEN, et al.,

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Respondents.

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On September 22, 2015, this Court entered an order directing petitioner Chavez

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to show cause why Ground 2 of his first amended petition (dkt. no. 22) should not be

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dismissed as procedurally barred. (Dkt. no. 46.) Chavez has filed his response to that

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order. (Dkt. no. 47.) Respondents have filed a response to the petitioner’s response.

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(Dkt. no. 48.) For reasons that follow, Ground 2 will be dismissed.

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I.

BACKGROUND

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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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Chavez has not presented this claim to the Nevada Supreme Court, but because

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the Nevada courts would now dismiss it on state law procedural grounds, the claim is

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technically exhausted, but procedurally barred. See Woodford v. Ngo, 548 U.S. 81, 93

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(2006). Thus, the issue before the Court is whether Chavez can show cause and

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prejudice sufficient to permit this Court to excuse the procedural defaults. See

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Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

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II.

DISCUSSION

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As a general matter, a habeas petitioner seeking to demonstrate good cause to

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excuse a procedural default must show that some “objective factor external to the

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

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

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prevented him from raising the claim. McCleskey v. Zant, 499 U.S. 467, 497 (1991). If

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he can establish cause, a petitioner must then show “prejudice;” i.e., that there was

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actual prejudice amounting to a substantial disadvantage, and which resulted in a trial

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infected with constitutional error. United States v. Frady, 456 U.S. 152, 170 (1982).

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In addition, the Supreme Court has held that, in collateral proceedings that

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

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assistance of post-conviction counsel in that proceeding may establish cause for a

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prisoner's procedural default of such a claim. Martinez v. Ryan, 132 S.Ct. 1308, 1315

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(2012). The Court stressed that its holding was a “narrow exception” to the rule in

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Coleman v. Thompson, 501 U.S. 722 (1991), that “an attorney's ignorance or

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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 1302 (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 post-conviction relief counsel as cause for failing to assert a

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claim of ineffective assistance of trial counsel need not be first exhausted. Dickens, 740

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F.3d at 1322, n.17.
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Here, Chavez claims that ineffective assistance of direct appeal counsel (IADAC)

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provides good cause to overcome the procedural default of Ground 2. As noted in this

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Court’s September 22, 2015, order, a claim of ineffective assistance of counsel showing

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“cause” is itself subject to the exhaustion requirements and the procedural default

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doctrine. Carrier, 477 U.S. at 492; Edwards v. Carpenter, 529 U .S. 446, 453 (2000).

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Chavez concedes that he has not presented to the Nevada Supreme Court an IADAC

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claim based on appellate counsel’s failure to raise Ground 2, but argues that that

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omission can be excused under the Martinez/Hguyen exception due to post-conviction

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counsel’s ineffectiveness.

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The court in Edwards specified that, when using counsel’s failure to preserve a

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claim for review in state court as cause to excuse a procedural default, “[n]ot just any

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deficiency in counsel's performance will do, . . . the assistance must have been so

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ineffective as to violate the Federal Constitution.” Edwards, 529 U.S. at 451. Post-

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conviction counsel ineffectiveness cannot amount to a constitutional violation, but

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Martinez permits it to serve as cause to excuse the default of an ineffective assistance

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of counsel claim when state law provides that such a claim be brought in the initial state

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collateral proceeding. Martinez, 132 S.Ct. at 1316; Trevino v. Thaler, 133 S.Ct. 1911,

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1921 (2013).

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No controlling authority permits a petitioner to show cause for the default of his

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secondary IADAC claim by showing that his post-conviction counsel was ineffective for

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failing to bring that claim. Indeed, it is only because of Nguyen, a Ninth Circuit panel

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decision, that the default of primary IADAC claims falls within Martinez. In the absence

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of direction from a higher court, this Court declines to further extend the Martinez

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exception in the manner petitioner suggests.

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It is therefore ordered that Ground 2 is dismissed as procedurally barred.

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It is further ordered that respondents will have thirty (30) days from the date this

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order is entered within which to file an answer to petitioner's remaining grounds for

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relief. Petitioner will have thirty (30) days following service of respondents' answer within

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which to file a reply.

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DATED THIS 26th day of April 2016

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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