Bayot v. Baca et al

Filing 25

ORDER granting 12 Motion to Dismiss and denying 23 Motion for Order to Show Cause. Grounds 1, 2, 3, and 7 of petition 7 are dismissed. Answer to remaining grounds due within 60 days. Signed by Judge Robert C. Jones on 6/1/15. (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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ALEXANDER B. BAYOT,

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Petitioner,

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vs.

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3:14-cv-00206-RCJ-WGC

ISIDRO BACA, et al.,

ORDER
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Respondents.
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Introduction
This habeas corpus action is brought by Alexander B. Bayot, a Nevada prisoner. The

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respondents have filed a motion to dismiss. The court will grant the motion to dismiss, and will

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dismiss Grounds 1, 2, 3, and 7 of Bayot’s habeas petition. The court will deny a “Motion to Show

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Cause, or in the Alternative, Motion for Default Judgment” filed by Bayot.

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Background

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On October 5, 2011, Bayot was convicted following a jury trial, in Nevada’s Eighth Judicial

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District Court, of eleven counts of forgery and one count of conspiracy to commit forgery. See

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Judgment of Conviction, Exhibit 41 (the exhibits referred to in this order were filed by respondents

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and are located in the record at ECF Nos. 13-17). He was adjudicated an habitual criminal, and was

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sentenced to 8 to 20 years in prison. See id.; see also Reporter’s Transcript, September 13, 2011

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(ECF No. 39). Bayot appealed, and the Nevada Supreme Court affirmed on November 15, 2012.

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See Order of Affirmance, Exhibit 58.

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On April 18, 2013, Bayot filed a post-conviction petition for writ of habeas corpus in state

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court. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 69. The state district court

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denied the petition, in a written order, on September 9, 2013. See Findings of Fact, Conclusions of

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Law and Order, Exhibit 84. Bayot appealed, and the Nevada Supreme Court affirmed the denial of

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his petition on March 12, 2014. See Order of Affirmance, Exhibit 96.

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This court received Bayot’s federal habeas corpus petition, initiating this action pro se, on
April 7, 2014 (ECF Nos. 1, 7). Bayot’s habeas petition asserts thirteen grounds for relief.

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On January 29, 2015, respondents filed a motion to dismiss (ECF No. 12), arguing that

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Ground 1 of Bayot’s petition is not cognizable in this federal habeas corpus action, and that Grounds

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2, 3, and 7 are unexhausted in state court.

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On February 13, 2015, Bayot filed an opposition to the motion to dismiss (ECF No. 20).

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Bayot argues that Ground 1 is cognizable in this action. With respect to Grounds 2, 3, and 7, Bayot

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appears to concede that those claims are unexhausted in state court, and he states: “To avoid any

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further delay in this petition, Petitioner moves to withdraw Grounds Two, Three, and Seven from

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this petition.” Opposition to Motion to Dismiss (ECF No. 20), p. 4.

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On March 23, 2015, Bayot filed a “Motion to Show Cause, or in the Alternative, Motion

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for Default Judgment” (ECF No. 23). Respondents filed an opposition to that motion on

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March 30, 2015 (ECF No. 24).

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Discussion

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Grounds 2, 3, and 7

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A federal court may not grant habeas corpus relief on a claim not exhausted in state court.

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28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is

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intended to allow state courts the initial opportunity to correct constitutional deprivations. See

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Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the

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claim to the highest state court, and must give that court the opportunity to address and resolve it.

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See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1,

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10 (1992). A claim is fairly presented to the state’s highest court if, before that court, the petitioner

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describes the operative facts and legal theory upon which the claim is based. See Anderson v.

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Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard, 404 U.S. at 275; Batchelor v. Cupp, 693 F.2d

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859, 862 (9th Cir. 1982).

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The court has examined the record with respect to Grounds 2, 3, and 7, and determines that

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those claims are unexhausted in state court. The court will, therefore, accept Bayot’s abandonment

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of Grounds 2, 3, and 7.

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With respect to those claims, then, respondents’ motion to dismiss will be granted. Grounds
2, 3, and 7 of Bayot’s habeas petition will be dismissed.

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Ground 1

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In Ground 1, Bayot claims that his Fourth Amendment rights were violated by an

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unconstitutional search. See Petition for Writ of Habeas Corpus (ECF No. 7), pp. 3-4.
A federal district court cannot grant habeas corpus relief on the ground that evidence was

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obtained by an unconstitutional search and seizure, so long as the state court provided the petitioner

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with an “opportunity for full and fair litigation of [the] Fourth Amendment claim.” Stone v. Powell,

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428 U.S. 465, 482 (1976); Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir.2005). The only

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inquiry this court can make is whether the petitioner had a full and fair opportunity to litigate his

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claim in state court, not whether petitioner did litigate the claim, nor even whether the state court

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correctly decided the claim. Ortiz–Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.1996); see also

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Gordon v. Duran, 895 F.2d 610, 613 (9th Cir.1990) (holding that because a California statute

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provided an opportunity to challenge evidence, dismissal under Stone was necessary even though

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the petitioner never moved to suppress the evidence).

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In this case, there is no showing that Bayot did not have a full and fair opportunity to litigate,
in state court, his claim that he was subjected to an unconstitutional search. In fact, Bayot did,

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before his trial, unsuccessfully litigate a motion to suppress evidence obtained in the search that he

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challenges. See Defendant’s Motion to Suppress and Motion for an Evidentiary Hearing,

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Exhibit 18; State’s Opposition to Defendant’s Motion to Suppress and Motion for an Evidentiary

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Hearing, Exhibit 19; Transcript of Evidentiary Hearing on Defendant’s Motion to Suppress,

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February 28, 2011, Exhibit 21. In addition, following his jury trial, Bayot unsuccessfully litigated a

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motion for new trial, arguing that a new trial was necessary on account of alleged newly discovered

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evidence bearing on the legality of the search. See Motion for New Trial, or, in the Alternative, for

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Evidentiary Hearing, Exhibit 35; State’s Opposition to Defendant’s Motion for New Trial and in the

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Alternative for an Evidentiary Hearing, Exhibit 37; Transcript of Hearing Regarding Motion for New

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Trial, or, in the Alternative, for Evidentiary Hearing, Exhibit 39. On Bayot’s direct appeal, the

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Nevada Supreme Court affirmed the state district court’s denial of both the motion to suppress and

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the motion for new trial. See Order of Affirmance, Exhibit 58. The Nevada Supreme Court stated:

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“We conclude that the inventory search did not violate the federal and state constitutions and did not

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err by denying Bayot’s suppression motion.” Id. at 2.

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Bayot was given a full and fair opportunity, in state court, to litigate the constitutionality of

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the search. Therefore, his claim in Ground 1 in his habeas petition in this case is barred by the

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doctrine of Stone v. Powell. The court will grant respondents’ motion to dismiss with respect to

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Ground 1. Ground 1 of Bayot’s habeas petition will be dismissed.

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Bayot’s Motion

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In his “Motion to Show Cause, or in the Alternative, Motion for Default Judgment,” Bayot

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moves the court for an order to show cause why his petition should not be granted for failure of the

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respondents to respond to Grounds 4, 5, 6, 8, 9, 10, 11, 12, and 13. See Motion to Show Cause, or in

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the Alternative, Motion for Default Judgment (ECF No. 23).

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The court has not yet required respondents to respond to those claims (this order will require
them to do so). Bayot’s motion will be denied.

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IT IS THEREFORE ORDERED that respondents’ Motion to Dismiss (ECF No. 12) is

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GRANTED. Grounds 1, 2, 3, and 7 of the petition for writ of habeas corpus (ECF No. 7) are

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dismissed.

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IT IS FURTHER ORDERED that respondents shall have 60 days to file an answer,

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responding to the remaining claims in the habeas petition (ECF No. 7), which are Grounds 4, 5, 6, 8,

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9, 10, 11, 12, and 13. After respondents file an answer, petitioner shall have 60 days to file a reply.

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IT IS FURTHER ORDERED that petitioner’s Motion to Show Cause, or in the Alternative,
Motion for Default Judgment (ECF No. 23) is DENIED.

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Dated this 1st day of of May, 2015.
Dated this _____ dayJune, 2015.

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UNITED STATES DISTRICT JUDGE
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