Villatoro v. LeGrand et al

Filing 25

ORDER granting in part 17 Motion to Dismiss: Ground 2 is unexhausted. Petitioner to have 30 days to notify the Court re the unexhausted claims. If Petitioner elects to abandon the unexhausted grounds, Respondents to have 30 days from Petit ioner's declaration of abandonment to answer remaining grounds; Petitioner to reply 30 days thereafter. Respondents' 23 Motion to Extend Time is granted nunc pro tunc. See order for further details. Signed by Judge Robert C. Jones on 3/3/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BALMORE ALEXANDER VILLATORO,

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Case No. 3:14-cv-00467-RCJ-WGC

Petitioner,

ORDER

v.
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ROBERT LEGRAND, et al.,
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Respondents.
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This habeas matter under 28 U.S.C. § 2254 comes before the court on

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respondents’ motion to dismiss petitioner Balmore Alexander Villatoro’s counseled first-

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amended petition (ECF No. 17). Villatoro opposed (ECF No. 21), and respondents

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replied (ECF No. 24).

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I.

Procedural History and Background

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On May 15, 2009, a jury convicted Villatoro of two counts of sexual assault (exhibit

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22 to first-amended petition, ECF No. 9).1 The state district court sentenced Villatoro to

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two terms of ten years to life, to run concurrently. Exh. 23. Judgment of conviction was

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filed on August 4, 2009. Id. The Nevada Supreme Court affirmed the convictions on

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September 29, 2010, and remittitur issued on October 27, 2010. Exhs. 28, 29.

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Exhibits referenced in this order are exhibits to petitioner’s first-amended petition, ECF No. 9, and are
found at ECF Nos. 10-13.

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After an evidentiary hearing, the state district court denied Villatoro’s postconviction
petition on June 27, 2013, the Nevada Supreme Court affirmed the denial on July 22,
2014, and remittitur issued on August 18, 2014. Exhs. 40, 41, 46, 47.
On or about September 8, 2014, Villatoro dispatched his federal habeas corpus
petition for mailing (ECF No. 4). This court appointed counsel, and the first-amended
petition was filed on April 9, 2015 (ECF No. 9). Respondents now argue that three of
the four grounds in the first-amended federal petition are subject to dismissal as
unexhausted or conclusory (ECF No. 17).
II.

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Legal Standards and Analysis
A. Exhaustion

A federal court will not grant a state prisoner’s petition for habeas relief until the
prisoner has exhausted his available state remedies for all claims raised.

Rose v.

Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state
courts a fair opportunity to act on each of his claims before he presents those claims in
a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also
Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the
petitioner has given the highest available state court the opportunity to consider the
claim through direct appeal or state collateral review proceedings. See Casey v. Moore,
386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir.
1981).
A habeas petitioner must “present the state courts with the same claim he urges
upon the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal
constitutional implications of a claim, not just issues of state law, must have been raised
in the state court to achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481
(D. Nev. 1988) (citing Picard, 404 U.S. at 276)). To achieve exhaustion, the state court
must be “alerted to the fact that the prisoner [is] asserting claims under the United
States Constitution” and given the opportunity to correct alleged violations of the
prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v.
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Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b)
“provides a simple and clear instruction to potential litigants: before you bring any claims
to federal court, be sure that you first have taken each one to state court.” Jiminez v.
Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 520
(1982)). “[G]eneral appeals to broad constitutional principles, such as due process,
equal protection, and the right to a fair trial, are insufficient to establish exhaustion.”
Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). However,
citation to state caselaw that applies federal constitutional principles will suffice.
Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc).
A claim is not exhausted unless the petitioner has presented to the state court the
same operative facts and legal theory upon which his federal habeas claim is based.
Bland v. California Dept. Of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). The
exhaustion requirement is not met when the petitioner presents to the federal court facts
or evidence which place the claim in a significantly different posture than it was in the
state courts, or where different facts are presented at the federal level to support the
same theory. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge
v. Sumner, 688 F.2d 1294, 1295 (9th Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455,
458 (D. Nev. 1984).
B. Conclusory Claims
In federal habeas proceedings, notice pleading is not sufficient. Mere conclusions of
violations of federal rights without specifics do not state a basis for federal habeas relief.
Mayle v. Felix, 545 U.S. 644, 655 (2005). A petition may be summarily dismissed if the
allegations in it are “vague, conclusory, palpably incredible, patently frivolous or false.”
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal citations omitted); see
also Blackledge v. Allison, 431 U.S. 63, 74 (1977).

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III.

Relevant Grounds in the First-Amended Petition

Ground 1
Villatoro alleges that the prosecutor committed misconduct in her opening statement
and the court failed to remedy the error by granting a mistrial or giving a proposed
curative instruction to the jury in violation of his Fifth, Sixth, and Fourteenth Amendment
rights to due process and a fair trial (ECF No. 9, pp. 8-13).
Respondents argue that Villatoro only presented these factual allegations as statelaw errors and that his citations to Nevada cases are insufficient to satisfy the fair
presentation requirement (ECF No. 17, p. 4).
When he raised these claims in his direct appeal, Villatoro did not reference federal
constitutional law. Exh. 26, pp. 13-19. Villatoro cited Garner v. State, in which the
Nevada Supreme Court held that the prosecutor’s misconduct violated the defendant’s
fair trial rights.

374 P.2d 525 (Nev. 1962).

In Garner, the state supreme court

emphasized the prosecutor’s duty to effect a just result at trial and quoted at length from
the United States Supreme Court opinion in Berger v. United States, 295 U.S. 78
(1935). This court concludes that the Garner decision’s extensive discussion of fair trial
and prejudice to substantial rights, together with its Berger reference, indicates that
Garner is based at least in part on a federal due process analysis. Accordingly, the
court determines that federal ground 1 is exhausted.
Ground 2
Villatoro contends that his Fifth, Sixth and Fourteenth Amendment rights to due
process, a fair trial and proof beyond a reasonable doubt were violated because
insufficient evidence supported his conviction on count I (ECF No. 9, pp. 13-14).
In his direct appeal, Villatoro argued that his conviction on count I violated the
corpus delicti rule. Exh. 26, pp. 8-13, citing Gaxiola v. State, 119 P.3d 1225, 1233-1234
(Nev. 2005). Under Nevada law, corpus delicti must be demonstrated by evidence
independent of the confessions or admissions of the defendant. See, e.g., id.

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Respondents are correct that the corpus delicti rule is a matter of state law. See
Evans v. Lubbers, 371 F.3d 438, 442 (8th Cir. 2004) (concluding that petitioner’s corpus
delicti claim did not implicate federal constitutional rights); Lopez v. Allison, 2014 WL
3362228 *7 (E.D.Cal. July 8, 2014); Gerlaugh v. Lewis, 898 F.Supp. 1388, 1410
(D.Ariz.1995) (rejecting corpus delicti claim in federal habeas action as raising a matter
of state law). Villatoro now raises the claim as federal ground 2 that insufficient
evidence supported his conviction in count I in violation of his federal rights to due
process, a fair trial and proof beyond a reasonable doubt (ECF No. 9, pp. 13-14). This
is a distinct legal theory, and accordingly, federal ground 2 is unexhausted.
Ground 3
Villatoro claims that defense counsel rendered ineffective assistance in violation of
his Sixth and Fourteenth Amendment rights when they failed to seek a DNA expert for
trial (ECF No. 9, pp. 14-15). Respondents argue that ground 3 is conclusory and should
be dismissed (ECF No. 17, pp. 5-6). Respondents are correct that mere conclusions of
violations of federal rights without specifics do not state a basis for federal habeas relief.
Id. at 6; Mayle, 545 U.S. at 655. Nevertheless, here, respondents’ arguments that
ground 3 is conclusory are better addressed in the context of adjudication on the merits,
after respondents have filed an answer and petitioner has had an opportunity to
respond. Accordingly, the court defers consideration of ground 3, and therefore, it is not
subject to dismissal at this time.

This ruling is without prejudice to respondents

reasserting arguments raised here at the appropriate time.
IV.

Petitioner’s Options Regarding Unexhausted Claims

A federal court may not entertain a habeas petition unless the petitioner has
exhausted available and adequate state court remedies with respect to all claims in the
petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both
exhausted and unexhausted claims is subject to dismissal. Id. In the instant case, the

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court finds that ground 2 is unexhausted. Because the court finds that the petition
contains an unexhausted claim, petitioner has these options:

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1.
He may submit a sworn declaration voluntarily abandoning
the unexhausted claims in his federal habeas petition, and proceed only
on the exhausted claims;
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He may return to state court to exhaust his unexhausted
claims, in which case his federal habeas petition will be denied without
prejudice; or
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He may file a motion asking this court to stay and abey his
exhausted federal habeas claims while he returns to state court to exhaust
his unexhausted claims.
With respect to the third option, a district court has discretion to stay a petition
that it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005).
The Rhines Court stated:

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[S]tay and abeyance should be available only in limited circumstances.
Because granting a stay effectively excuses a petitioner’s failure to
present his claims first to the state courts, stay and abeyance is only
appropriate when the district court determines there was good cause for
the petitioner’s failure to exhaust his claims first in state court. Moreover,
even if a petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his unexhausted
claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application
for a writ of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts
of the State”).
Rhines, 544 U.S. at 277.

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Accordingly, if petitioner files a motion for stay and abeyance, he would be

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required to show good cause for his failure to exhaust his unexhausted claims in state

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court, and to present argument regarding the question of whether or not his

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unexhausted claims are plainly meritless.

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opportunity to respond, and petitioner to reply.

Respondent would then be granted an

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Petitioner’s failure to choose any of the three options listed above, or seek other

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appropriate relief from this court, will result in his federal habeas petition being

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dismissed. Petitioner is advised to familiarize himself with the limitations periods for
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filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations
periods may have a direct and substantial effect on whatever choice he makes
regarding his petition.
V.

Conclusion
IT IS THEREFORE ORDERED that respondents’ motion to dismiss (ECF No. 17)

is GRANTED in part as follows: ground 2 is unexhausted.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either:
(1) inform this court in a sworn declaration that he wishes to formally and forever
abandon the unexhausted ground for relief in his federal habeas petition and proceed
on the exhausted grounds; OR (2) inform this court in a sworn declaration that he
wishes to dismiss this petition without prejudice in order to return to state court to
exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking
this court to hold his exhausted claims in abeyance while he returns to state court to
exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and
abeyance, or seek other appropriate relief, respondents may respond to such motion as
provided in Local Rule 7-2.
IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted
grounds, respondents shall have thirty (30) days from the date petitioner serves his
declaration of abandonment in which to file an answer to petitioner’s remaining grounds
for relief. The answer shall contain all substantive and procedural arguments as to all
surviving grounds of the petition, and shall comply with Rule 5 of the Rules Governing
Proceedings in the United States District Courts under 28 U.S.C. §2254.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days following
service of respondents’ answer in which to file a reply.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within
the time permitted, this case may be dismissed.

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IT IS FURTHER ORDERED that respondents’ motion to extend time to file their
reply in support of the motion to dismiss (ECF No. 23) is GRANTED nunc pro tunc.

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DATED: 3 March 2016.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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