Castillo v. Legrand et al
Filing
15
ORDER DISMISSING CASE without prejudice for complete lack of exhaustion; denying a certificate of appealability. The Clerk shall serve a copy of this order and the final judgment on the NV AG, along with regenerated NEFs of the prior filings herein (served 6/20/2014). The Clerk shall enter judgment accordingly. Signed by Judge Larry R. Hicks on 6/20/2014. (Copies have been distributed pursuant to the NEF - KR)
1
2
3
4
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
5
6
7
GERARDO CASTILLO,
8
Petitioner,
3:13-cv-00704-LRH-VPC
9
vs.
10
11
12
ORDER
LEGRAND, et al.,
Respondents.
13
14
This habeas matter under 28 U.S.C. § 2254 comes before the Court on its sua sponte inquiry into
15
whether the petition should be dismissed without prejudice as wholly unexhausted. This order follows
16
upon a prior show-cause order (#7), a subsequent order (#13) addressing petitioner’s preliminary
17
invocation of procedural default to constructively exhaust his claims, and petitioner’s show-cause
18
response (#14).
19
Background
20
Petitioner Gerardo Castillo challenges his 2005 Nevada state conviction, pursuant to a jury
21
verdict, of first-degree murder with the use of a deadly weapon. He challenged the conviction on direct
22
appeal and on state post-conviction review. In his show-cause response, petitioner does not contend
23
that any of his claims are actually exhausted rather than constructively exhausted by procedural default.
24
The particularized analysis outlining why none of the claims are actually exhausted is detailed in the
25
show-cause order. See #7, at 2-3.
26
Governing Law
27
The Court may raise issues of exhaustion sua sponte. See, e.g., Aiken v. Spalding, 841 F.2d 881,
28
883 (9th Cir. 1988). Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his state
1
court remedies on a claim before presenting that claim to the federal courts. To satisfy this exhaustion
2
requirement, the claim must have been fairly presented to the state courts completely through to the
3
highest court available, in this case the Supreme Court of Nevada. E.g., Peterson v. Lampert, 319 F.3d
4
1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state
5
courts, the petitioner must refer to the specific federal constitutional guarantee and must also state the
6
facts that entitle the petitioner to relief on the federal constitutional claim. E.g., Shumway v. Payne, 223
7
F.3d 983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present the state
8
courts with both the operative facts and the federal legal theory upon which his claim is based. E.g.,
9
Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement insures that the
10
state courts, as a matter of federal-state comity, will have the first opportunity to pass upon and correct
11
alleged violations of federal constitutional guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722,
12
731(1991).
13
14
A petition that is completely unexhausted is subject to immediate dismissal. See, e.g., Rasberry
v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001).
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Discussion
Petitioner contends first that exhaustion would be futile because the state courts would reject
his claims on procedural grounds.
When petitioner referenced this argument prior to his show-cause response, the Court stated the
law that it applies in considering such an argument:
A petitioner potentially can establish that a claim is
constructively exhausted because it is procedurally defaulted. To date,
however, the state courts have not applied any procedural bars to any of
petitioner’s claims in the federal petition, given that petitioner has not
fairly presented any of the claims to the state courts through to the state
supreme court. Significantly, the Nevada state courts apply substantially
the same standards as do the federal courts in determining whether a
petitioner can overcome a possible procedural default of a claim.[FN1]
The Court therefore will not find a claim constructively exhausted based
upon the claim being procedurally defaulted unless the petitioner
unequivocally stipulates that the unexhausted claims in fact would be
denied on state procedural grounds if he returned to state court to present
the claims. Such an unequivocal stipulation, to in truth be unequivocal
in light of the procedural default rules under Nevada law, must include
concessions that: (1) petitioner cannot avoid dismissal of the claims in
the state courts because he cannot demonstrate cause and prejudice in the
state courts to overcome the state procedural bars; (2) petitioner cannot
-2-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
avoid dismissal of the claims in the state courts because he cannot
demonstrate in the state courts that the alleged constitutional violation
probably has resulted in the conviction of one who is actually innocent
and cannot thereby overcome these procedural bars; and (3) the
procedural bars otherwise are now consistently applied by the Nevada
state courts, such that it is not possible that the state courts, as a
discretionary matter, would consider the claims despite the procedural
default and despite a failure to demonstrate either cause and prejudice or
actual innocence. Absent such unequivocal concessions, the Court will
not hold that there is no possibility that the unexhausted claims would be
considered by the state courts on the merits.
[FN1] Under state practice, "[a] petitioner can overcome
the bar to an untimely or successive petition by showing
good cause and prejudice." E.g., Mitchell v. State, 149
P.3d 33, 36 (Nev. 2006). In Robinson v. Ignacio, 360
F.3d 1044 (9th Cir. 2004), the court of appeals
recognized that "Nevada's ‘cause and prejudice' analysis
and the federal ‘cause and prejudice analysis' are nearly
identical, as both require ‘cause for the default and actual
prejudice as a result.'" 360 F.3d at 1052 n.3. Moreover,
the Nevada state courts also recognize the same
exception for a fundamental miscarriage of justice, such
that "[e]ven when a petitioner cannot show good cause
sufficient to overcome the bars to an untimely or
successive petition, habeas relief may still be granted if
the petitioner can demonstrate that ‘a constitutional
violation has probably resulted in the conviction of one
who is actually innocent.'" Mitchell, 149 P.3d at 36
(quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
16
17
18
19
20
21
22
23
24
25
26
27
28
In short, if petitioner wishes to rely on procedural default case
law to overcome the lack of exhaustion of his claims, he must
unequivocally stipulate that he cannot overcome any applicable state
procedural bars in the state courts. If he does not so stipulate, the Court
will dismiss the petition without prejudice for complete lack of
exhaustion. If he does so stipulate, then the Court instead will dismiss
the petition with prejudice on the basis of procedural default. Given that
the Nevada courts apply substantially the same standards to overcome a
procedural default as in federal court, there is no “middle area” where a
petitioner can rely upon a possible procedural default to demonstrate the
constructive exhaustion of his claims and then present a causeand-prejudice or other argument for the first time in federal court to
overcome the procedural bar. Rather, petitioner must present any such
cause-and-prejudice or other argument to the state courts in the first
instance if he seeks to overcome a possible procedural default of his
claims.
#13, at 2-3 (second footnote omitted).
In the show-cause response, petitioner states:
. . . [U]nder state procedural bars the . . . Nevada Supreme Court
. . . does not recognize attorney errors and/or negligence as cause
(Mitchell, 149 P.3d 33). Thus as such petitioner asserts that he cannot
-3-
1
overcome the imminent state bar under the first example for cause
provided by this Court (Dkt 13 at pg. 2 Ln 20). However the other
example for cause can be met (Dkt 13 at pg. 2 Fn 1) wherein under . . .
Murray v. Carrier 477 US 478 . . . House v. Bell 547 US 518 . . . the
grounds in the instant habeas has set forth new evidence that if allowed
before a jury would have substantiated petitioners [sic] contention for a
finding of not guilty, due to actual innocence. . . . .
2
3
4
5
#14, at 1-2.
6
As explicitly stated in the prior order, the Nevada state courts also recognize actual innocence
7
as a potential basis for overcoming a procedural default in state court. Petitioner thus cannot
8
successfully establish that his claims are constructively exhausted on the premise that they would be
9
procedurally barred in the Nevada state courts while at the same time maintaining that he can overcome
10
a procedural default of the claims upon a showing of actual innocence. The argument that petitioner
11
seeks to raise in federal court can be made to the Nevada state courts in the first instance. As the prior
12
order stated, there is no “middle area” where a petitioner can claim that the Nevada courts would not
13
hear his claims on the basis of procedural default while at the same time invoking an exception to
14
procedural default rules that the Nevada courts also clearly recognize.
15
16
Petitioner therefore has failed to demonstrate that his claims are constructively exhausted on the
basis of futility and procedural default.
17
Petitioner further requests that the Court enter a stay under Rhines v. Weber, 544 U.S. 269
18
(2005). However, a stay is available only where the federal petition is a mixed petition including both
19
exhausted and unexhausted claims.
20
unexhausted. A stay therefore is not available. Rasberry, 448 F.3d at 1154; Jones v. McDaniel, 2009
21
WL 890915 (9th Cir. April 2, 2009).
22
23
The federal petition in this action instead is completely
IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice for
complete lack of exhaustion.
24
IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason
25
would not find the dismissal of the completely unexhausted petition without prejudice to be debatable
26
or wrong.
27
IT FURTHER IS ORDERED that, pursuant to Rule 4 of the Rules Governing Section 2254
28
Cases, the Clerk of Court shall serve a copy of this order and the final judgment by informal electronic
-4-
1
service upon Attorney General Catherine Cortez Masto, along with regenerated notices of electronic
2
filing of the prior filings herein. No response is required from respondents in this matter other than
3
to respond to the orders of any reviewing court.
4
The Clerk shall enter final judgment accordingly, dismissing this action without prejudice.
5
DATED this 20th day of June, 2014.
6
7
____________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?