Villatoro v. LeGrand et al

Filing 31

ORDERED that petitioner's motion for stay and abeyance (ECF No. 28 ) is DENIED. P shall file sworn declaration re abandonment or dismissal of unexhausted claims by 3/18/2017. If P elects to abandon then answer to remaining grounds due 30 days from service of declaration; Reply due 30 days thereafter. Signed by Judge Robert C. Jones on 2/16/2017. (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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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 petitioner

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Balmore Alexander Villatoro’s counseled motion for stay and abeyance in accordance

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with Rhines v. Weber pending the conclusion of his state postconviction proceedings

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(ECF No. 28). Respondents opposed (ECF No. 29), and petitioner did not file a reply.

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In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations

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upon the discretion of the court to facilitate habeas petitioners’ return to state court to

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exhaust claims. 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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The Court went on to state that, “[I]t likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the petitioner had good
cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally dilatory litigation
tactics.” Id. at 278.
Thus, this court may stay a petition containing both exhausted and unexhausted
claims if: (1) the habeas petitioner has good cause; (2) the unexhausted claims are
potentially meritorious; and (3) petitioner has not engaged in dilatory litigation tactics.
Rhines, 544 U.S. at 277; Gonzalez v. Wong, 667 F.3d 965, 977–80 (9th Cir. 2011).
“[G]ood cause turns on whether the petitioner can set forth a reasonable excuse,
supported by sufficient evidence, to justify [the failure to exhaust a claim in state court].”
Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion cannot
amount to a showing of good cause, a reasonable excuse, supported by evidence to
justify a petitioner's failure to exhaust, will.” Id. An indication that the standard is not
particularly stringent can be found in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where
the Supreme Court stated that: “[a] petitioner's reasonable confusion about whether a
state filing would be timely will ordinarily constitute ‘good cause’ to excuse his failure to
exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U .S. at 278). See also Jackson v.
Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (the application of an “extraordinary
circumstances” standard does not comport with the “good cause” standard prescribed
by Rhines).
In its order dated March 4, 2016, this court granted respondents’ motion to
dismiss in part, concluding that ground 2 was unexhausted (ECF No. 25). In ground 2,
Villatoro argues that insufficient evidence was presented at trial to convict him of sexual
assault in violation of his Fourteenth Amendment due process rights (ECF No. 9, pp.
13-14). He argues that he can demonstrate good cause because his state

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postconviction counsel rendered ineffective assistance by failing to present federal
ground 2 to the Nevada Supreme Court (ECF No. 28, pp. 9-10).
In Martinez v. Ryan, the United States Supreme Court held that the failure to
appoint counsel or the ineffective assistance of counsel in a state postconviction
proceeding may establish cause to overcome procedural default of a claim of ineffective
assistance of trial counsel. 132 S.Ct. 1309, 1315, 1318 (2012). The Ninth Circuit then
held in Blake that a valid claim of ineffective assistance of state postconviction counsel
under Martinez v. Ryan (which would also encompass the absence of counsel) that
would establish “cause” for overcoming a default would also be sufficient to justify a stay
for purposes of exhausting the petitioner’s claims. Blake v. Baker, 745 F.3d at 983-84
(holding that “cause” under Rhines “cannot be any more demanding” than the Martinez
standard); Id. at 984, fn. 7 (noting that Supreme Court has suggested the Rhines
standard is more liberal).
Here, Villatoro argues that ineffective assistance of state postconviction counsel
provides good cause for his failure to exhaust federal ground 2 (ECF No. 28, pp. 9-10).
This argument is unavailing, however, because Blake relies on Martinez which is limited
to addressing claims of ineffective assistance of trial counsel only. See also Ha Van
Nguyen v. Curry, 736 F.3d 1287, 1295 (9th Cir. 2013) (holding that the Martinez
standard for cause applies to both trial and appellate ineffective assistance of counsel
claims). That is, the underlying unexhausted claim must be a claim of ineffective
assistance of counsel. Federal ground 2, however, is not an IAC claim, it is a
substantive challenge to the sufficiency of the evidence to convict Villatoro of one of the
sexual assault counts. Accordingly, Villatoro has not demonstrated good cause for
failing to exhaust federal ground 2. The court also notes that a sufficiency of the
evidence claim generally must be raised on direct appeal. Thus it is unclear how state
postconviction counsel’s failure to raise the claim in a state postconviction petition would
constitute ineffective assistance or provide a reasonable excuse here. Blake, 745 F.3d

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at 982; see also Jones v. Barnes, 463 U.S. 745 (1983) (counsel does not have a duty
even to raise every non-frivolous claim on appeal).
Accordingly, petitioner’s motion for a stay and abeyance of this federal habeas
corpus proceeding is denied. Villatoro, through counsel, will need 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 claim.
IT IS THEREFORE ORDERED that petitioner’s motion for stay and abeyance
(ECF No. 28) is DENIED.
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 grounds 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.
IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted
ground, 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.

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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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Dated: This 16th day of 2017.
DATED: 1 February February, 2017.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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